10-Q

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-Q

(Mark One)

xQUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended March 22, 2003

OR

oTRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from          to

Commission File Number 1-4455

DOLE FOOD COMPANY, INC.

(Exact name of registrant as specified in its charter)

Delaware
(State or other jurisdiction of
incorporation or organization) 99-0035300
(I.R.S. Employer
Identification No.)

One Dole Drive
Westlake Village, California 91362
(Address of principal executive offices and zip code)

Registrant’s telephone number, including area code: (818) 879-6600

     Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes    þ     No   o

     Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act). Yes    þ     No   o

     Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date.

Class
Common Stock, $0.001 Par Value Shares Outstanding at May 5, 2003
1,000

TABLE OF CONTENTS

PART I.FINANCIAL INFORMATION
	ITEM 1. FINANCIAL STATEMENTS
		CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
		CONDENSED CONSOLIDATED BALANCE SHEETS
		CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
		NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
	ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
	ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
	ITEM 4. CONTROLS AND PROCEDURES
PART II. OTHER INFORMATION
	Item 1. Legal Proceedings
	Item 6. Exhibits and Reports on Form 8-K
SIGNATURES
CERTIFICATIONS-SECTION 302 CHIEF EXECUTIVE OFFICER
CERTIFICATIONS-SECTION 302 CHIEF FINANCIAL OFFICER
CERTIFICATION-SECTION 906 CHIEF EXECUTIVE OFFICER
CERTIFICATION-SECTION 906 CHIEF FINANCIAL OFFICER
EXHIBIT INDEX
EXHIBIT 3.1
EXHIBIT 3.2
EXHIBIT 4.1
EXHIBIT 4.10
EXHIBIT 4.11

DOLE FOOD COMPANY, INC.

Index

			Page
			Number
Part I.		Financial Information
	Item 1.	Financial Statements
		Condensed Consolidated Statements of Operations—Quarters Ended March 22, 2003 and March 23, 2002		3
		Condensed Consolidated Balance Sheets—March 22, 2003 and December 28, 2002		4
		Condensed Consolidated Statements of Cash Flows—Quarters Ended March 22, 2003 and March 23, 2002		5
		Notes to Condensed Consolidated Financial Statements		6
	Item 2.	Management's Discussion and Analysis of Financial Condition and Results of Operations		12
	Item 3.	Quantitative and Qualitative Disclosures About Market Risk		18
	Item 4.	Controls and Procedures		18
Part II.		Other Information
	Item 1.	Legal Proceedings		18
	Item 6.	Exhibits and Reports on Form 8-K		20
		Signatures		21
		Certification of the Chief Executive Officer under Section 302 of the Sarbanes-Oxley Act of 2002		22
		Certification of the Chief Financial Officer under Section 302 of the Sarbanes-Oxley Act of 2002		23
		Certification of the Chief Executive Officer under Section 906 of the Sarbanes-Oxley Act of 2002		24
		Certification of the Chief Financial Officer under Section 906 of the Sarbanes-Oxley Act of 2002		25
		Exhibit Index		26

2

PART I.
FINANCIAL INFORMATION

ITEM 1. FINANCIAL STATEMENTS
DOLE FOOD COMPANY, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

(Unaudited)
(in thousands, except per share amounts)

		Quarter Ended
		March 22,		March 23,
		2003		2002
Revenues, net		$	1,073,170	$	1,059,415
Cost of products sold			895,039		880,992
	Gross margin		178,131		178,423
Selling, marketing and general and administrative expenses			89,341		84,501
	Operating income		88,790		93,922
Interest income			2,700		2,148
Other income (expense) —net			2,045		1,225
	Earnings before interest expense and income taxes		93,535		97,295
Interest expense			19,647		14,531
	Income before income taxes and cumulative effect of a change in accounting principle		73,888		82,764
Income taxes			13,100		26,485
	Income before cumulative effect of a change in accounting principle		60,788		56,279
Cumulative effect of a change in accounting principle			—		(119,917	)
	Net income (loss)	$	60,788	$	(63,638	)
Earnings (loss) per common share—basic
	Income before cumulative effect of a change in accounting principle	$	1.08	$	1.01
	Cumulative effect of a change in accounting principle		—		(2.14	)
	Net income (loss)	$	1.08	$	(1.13	)
Earnings (loss) per common share—diluted
	Income before cumulative effect of a change in accounting principle	$	1.07	$	0.99
	Cumulative effect of a change in accounting principle		—		(2.11	)
	Net income (loss)	$	1.07	$	(1.12	)
Weighted-average number of common shares outstanding—basic			56,294		55,945
Weighted-average number of common shares outstanding—diluted			56,898		56,832

See Accompanying Notes to Condensed Consolidated Financial Statements

3

DOLE FOOD COMPANY, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS

(Unaudited)
(in thousands, except share data)

				March 22,			December 28,
				2003			2002
ASSETS
Current Assets:
	Cash and cash equivalents			$	641,000		$	646,967
	Receivables, net of allowances of $70,678 and $70,938				586,307			505,427
	Inventories				422,335			410,912
	Prepaid expenses				47,152			42,467
	Deferred income tax assets				32,952			36,842
			Total current assets		1,729,746			1,642,615
Investments					82,102			80,939
Property, plant and equipment, net of accumulated depreciation of $884,173 and $917,983					1,003,809			1,026,565
Goodwill, net of accumulated amortization of $33,315 and $33,300					132,089			132,080
Other assets, net					136,436			154,653
			Total assets	$	3,084,182		$	3,036,852
LIABILITIES AND SHAREHOLDERS’ EQUITY
Current Liabilities:
	Accounts payable and accrued liabilities			$	702,236		$	710,944
	Current portion of long-term debt				249,091			230,813
	Notes payable				12,733			11,601
			Total current liabilities		964,060			953,358
Long-term debt					863,653			882,480
Other long-term liabilities					421,175			426,613
Minority interests					30,563			29,290
Commitments and contingencies (See Note 10)
Shareholders’ equity:
	Preferred stock, no par value
		30 million shares authorized, no shares issued and outstanding			—			—
	Common stock, no par value				316,973			316,853
		80 million shares authorized, 56.3 million shares issued and outstanding at March 22, 2003; 56.2 million shares issued and outstanding at December 28, 2002
	Additional paid-in capital				69,474			66,319
	Retained earnings				501,682			449,334
	Accumulated other comprehensive loss				(83,398	)		(87,395	)
			Total shareholders’ equity		804,731			745,111
			Total liabilities and shareholders’ equity	$	3,084,182		$	3,036,852

See Accompanying Notes to Condensed Consolidated Financial Statements

4

DOLE FOOD COMPANY, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(in thousands)

		Quarter Ended
		March 22,			March 23,
		2003			2002
Operating activities
Net income (loss)		$	60,788		$	(63,638	)
Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities:
	Cumulative effect of a change in accounting principle		—			119,917
	Depreciation and amortization		25,295			21,910
	Net loss (gain) on asset disposals and abandonments		1,884			(867	)
	Equity earnings, net of distributions		(2,273	)		(2,681	)
	Provision for deferred income taxes		2,201			12,703
	Minority interests		1,073			1,426
	Other		894			229
Changes in operating assets and liabilities net of effects from non-cash transactions:
	Receivables		(79,192	)		(113,692	)
	Inventories		(11,367	)		(20,447	)
	Prepaid expenses and other assets		(47	)		4,406
	Accounts payable and accrued liabilities		5,253			(11,154	)
	Other long-term liabilities		(3,104	)		1,725
Cash flow provided by (used in) operating activities			1,405			(50,163	)
Investing activities
Proceeds from sales of assets			1,743			8,420
Purchases of investments			—			(511	)
Capital additions			(3,827	)		(16,637	)
Cash flow used in investing activities			(2,084	)		(8,728	)
Financing activities
Short-term debt borrowings			8,777			5,861
Short-term debt repayments			(10,659	)		(9,511	)
Long-term debt borrowings			4,193			—
Long-term debt repayments			(2,952	)		(7,089	)
Dividends paid to common shareholders			(8,440	)		(8,389	)
Proceeds from issuance of common stock			2,768			1,210
Cash flow used in financing activities			(6,313	)		(17,918	)
Effect of foreign exchange rate changes on cash and cash equivalents			1,025			331
Decrease in cash and cash equivalents			(5,967	)		(76,478	)
Cash and cash equivalents at beginning of period			646,967			361,326
Cash and cash equivalents at end of period		$	641,000		$	284,848

See Accompanying Notes to Condensed Consolidated Financial Statements

5

DOLE FOOD COMPANY, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)

1.    BASIS OF PRESENTATION

In the opinion of management, the accompanying unaudited condensed consolidated financial statements of Dole Food Company, Inc. and its consolidated subsidiaries (the “Company”) include all adjustments necessary, which are of a normal recurring nature, to present fairly the Company’s financial position as of March 22, 2003, its results of operations for the quarters ended March 22, 2003 and March 23, 2002 and its cash flows for the quarters then ended. The Company operates under a 52/53-week year and the quarters ended March 22, 2003 and March 23, 2002 are twelve weeks in duration. For a summary of significant accounting policies used in the preparation of these financial statements, refer to the Notes to Consolidated Financial Statements in Item 8 of the Company’s Annual Report on Form 10-K (“10-K”) for the year ended December 28, 2002 and the new accounting policies adopted by the Company in the first fiscal quarter of 2003 (see Note 2 below).

Interim results are subject to seasonal variations and are not necessarily indicative of the results of operations for a full year. The Company’s operations are sensitive to a number of factors including weather-related phenomena and their effects on industry volumes, prices, product quality and costs. Operations are also sensitive to fluctuations in currency exchange rates in both sourcing and selling locations as well as economic crises and security risks in developing countries. For additional information on market risks and related matters affecting the Company’s financial position and results of operations, refer to Items 1, 7 and 7A of the Company’s 10-K for the year ended December 28, 2002.

Certain prior year amounts have been reclassified to conform with the 2003 presentation.

2.    ADOPTION OF NEW ACCOUNTING POLICIES

In the first quarter of 2003 the Company adopted new accounting policies in accordance with the provisions of the following recently issued accounting pronouncements. With the exception of the adoption of a new accounting policy for special-purpose entities, which is effective from February 1, 2003, these new accounting policies are effective December 29, 2002, the first day of the Company’s 2003 fiscal year:

Asset Retirement Obligations: In June 2001, the Financial Accounting Standards Board (“FASB”) issued Statement of Financial Accounting Standards No. 143 (“FAS 143”), “Accounting for Asset Retirement Obligations.” This standard provides accounting guidelines for the cost of legal obligations associated with the retirement of long-lived assets. FAS 143 requires that companies recognize the fair-value of a liability for asset retirement obligations in the period in which the obligations are incurred and capitalize that amount as part of the book value of the long-lived asset. The resulting net cost is then depreciated over the remaining life of the underlying long-lived asset. The adoption of FAS 143 did not have a material impact on the Company’s financial condition or results of operations.

Restructuring Costs: In June 2002, the FASB issued Statement of Financial Accounting Standards No. 146 (“FAS 146”), “Accounting for Costs Associated with Exit or Disposal Activities.” FAS 146 addresses financial accounting and reporting for costs associated with exit or disposal activities and nullifies Emerging Issues Task Force Issue No. 94-3 (“EITF 94-3”), “Liability Recognition for Certain Employee Termination Benefits and Other Costs to Exit an Activity (including Certain Costs Incurred in a Restructuring).” This statement requires that the fair-value of an initial liability for a cost associated with an exit or disposal activity be recognized when the liability is incurred as opposed to when the entity commits to an exit plan, thereby eliminating the definition and requirements for recognition of exit costs. The adoption of FAS 146 did not have a material impact on the Company’s financial condition or results of operations.

Guarantees: In November 2002, the FASB issued FASB Interpretation No. 45 (“FIN 45”), “Guarantor’s Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others.” FIN 45 elaborates on the disclosures to be made by a guarantor about its obligations under certain types of guarantees. FIN 45 also clarifies that a guarantor is required to recognize, at the inception of a guarantee, a liability for the fair-value of the obligation undertaken in issuing the guarantee. FIN 45 specifically identifies obligations that are excluded from the provisions related to recognizing a liability at inception; however, these guarantees are subject to the disclosure requirements of FIN 45. The recognition and measurement provisions of FIN 45 are applicable on a prospective basis to guarantees issued or modified after the beginning of the fiscal year in which FIN 45 is adopted. The adoption of FIN 45 did not have a material impact on the Company’s financial condition or results of operations.

Stock-Based Compensation: In December 2002, the FASB issued Statement of Financial Accounting Standards No. 148 (“FAS 148”), “Accounting for Stock-Based Compensation - Transition and Disclosure, an amendment of FASB Statement No. 123.” FAS 148 amends Statement of Financial Accounting Standards No. 123 (“FAS 123”), “Accounting for Stock-Based Compensation,” to provide alternative methods of transition for a voluntary change to the fair-value based method of accounting for stock-based employee compensation. Beginning on December 29, 2002 the Company elected to adopt the fair-value method of accounting for stock-based employee compensation. Prior to December 29, 2002, the Company applied the intrinsic value method of accounting for stock options issued to

6

DOLE FOOD COMPANY, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
(Unaudited)

employees. The Company has elected to apply the prospective method of adoption outlined in FAS 148. The prospective method applies the recognition provisions of FAS 123 to all employee awards granted, modified or settled after the beginning of the fiscal years in which the recognition provisions are first applied. The adoption of the fair-value method of accounting for stock options issued to employees, on a prospective basis, did not have a material impact on the Company’s financial condition or results of operations for the quarter ended March 22, 2003.

Special-Purpose Entities: In January 2003, the FASB issued FASB Interpretation No. 46 (“FIN 46”), “Consolidation of Variable Interest Entities.” This standard clarifies the application of Accounting Research Bulletin No. 51, “Consolidated Financial Statements,” and addresses consolidation by business enterprises of variable interest entities (more commonly know as Special-Purpose Entities or SPEs). FIN 46 requires existing unconsolidated variable interest entities to be consolidated by their primary beneficiaries if the entities do not effectively disperse risk among the parties involved. FIN 46 also significantly enhances the disclosure requirements related to variable interest entities. This statement is effective for variable interest entities created or in which an enterprise obtains an interest after January 31, 2003. It applies in the first fiscal year or interim period beginning after June 15, 2003, for all interests in variable entities acquired before February 1, 2003 and will therefore be applicable to these entities in the Company’s third quarter of 2003. The Company had no new interests in variable interest entities in the first quarter of 2003. The Company is in the process of evaluating the impact of this statement on its financial condition and results of operations as a result of interests the Company has in variable interest entities acquired prior to February 1, 2003.

3.    SEGMENT INFORMATION

The Company has four primary reportable operating segments: fresh fruit, fresh vegetables, packaged foods and fresh-cut flowers. These reportable segments are managed separately due to differences in their products, production processes, distribution channels and customer bases.

Management evaluates and monitors segment performance primarily through earnings before interest expense and income taxes (“EBIT”). EBIT, which is disclosed as a line in the Condensed Consolidated Statements of Operations, is calculated by adding interest income and other income (expense) – net to operating income. Management believes that segment EBIT provides useful information for analyzing the underlying business results as well as allowing investors a means to evaluate the financial results of each segment in relation to the Company as a whole. EBIT is not defined under accounting principles generally accepted in the United States (“GAAP”) and should not be considered in isolation or as a substitute for net income or cash flow measures prepared in accordance with GAAP or as a measure of the Company’s profitability or liquidity. Additionally, the Company’s computation of EBIT may not be comparable to other similarly titled measures computed by other companies, because all companies do not calculate EBIT in the same fashion.

Revenues from external customers and EBIT for the reportable operating segments and corporate and other were as follows (in thousands):

		Quarter Ended
		March 22,			March 23,
		2003			2002
Revenues from external customers
	Fresh fruit	$	725,115		$	650,743
	Fresh vegetables		176,865			223,977
	Packaged foods		116,712			127,889
	Fresh-cut flowers		48,506			52,802
	Other operating segments		5,972			4,004
		$	1,073,170		$	1,059,415
EBIT
	Fresh fruit	$	70,174		$	46,807
	Fresh vegetables		16,703			43,723
	Packaged foods		11,693			13,411
	Fresh-cut flowers		6,394			3,104
	Other operating segments		65			7
	Total operating segments		105,029			107,052
	Corporate and other		(11,494	)		(9,757	)
		$	93,535		$	97,295

7

DOLE FOOD COMPANY, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
(Unaudited)

Total assets for the reportable operating segments and corporate and other were as follows (in thousands):

	March 22,		December 28,
	2003		2002
Fresh fruit	$	1,593,171	$	1,509,424
Fresh vegetables		271,250		274,867
Packaged foods		364,835		347,395
Fresh-cut flowers		163,274		155,863
Other operating segments		9,265		10,575
Total operating segments		2,401,795		2,298,124
Corporate and other		682,387		738,728
	$	3,084,182	$	3,036,852

4.    INVENTORIES

The major classes of inventory were as follows (in thousands):

	March 22,		December 28,
	2003		2002
Finished products	$	206,585	$	180,580
Raw materials and work in progress		115,985		111,725
Crop growing costs		44,823		59,672
Operating supplies and other		54,942		58,935
	$	422,335	$	410,912

5.    EARNINGS PER COMMON SHARE

The basic weighted-average number of common shares outstanding was 56.3 million and 55.9 million for the quarters ended March 22, 2003 and March 23, 2002, respectively. The difference between basic and diluted earnings per common share for the Company is solely attributable to stock options. For the quarters ended March 22, 2003 and March 23, 2002, stock options for approximately 0.9 million and 1.1 million shares, respectively, were excluded from the diluted earnings (loss) per share calculation, as these options were anti-dilutive. For the quarters ended March 22, 2003 and March 23, 2002 the diluted weighted-average number of common and common share equivalent outstanding was 56.9 million and 56.8 million, respectively.

6.    DIVIDENDS

During the first quarter of 2003, the Company declared and paid dividends of approximately $8 million on its common shares representing its regular quarterly dividends of 15 cents per share. During the first quarter of 2002, the Company declared dividends of $17 million on its common shares, representing its quarterly dividends of 15 cents per share for the first and second quarters of 2002, of which $8 million was paid.

7.    STOCK-BASED COMPENSATION

During the first quarter of fiscal 2003, the Company adopted the fair-value recognition provisions of FAS 123, as amended by FAS 148, for stock-based employee compensation, effective as of the beginning of the 2003 fiscal year. Under the prospective method of adoption selected by the Company, the recognition provisions of FAS 123 apply to all new employee awards granted after December 28, 2002; prior awards will continue to be accounted for under the intrinsic value method. No stock compensation expense is included in the results of operations for the quarters ended March 22, 2003 and March 23, 2002.

8

DOLE FOOD COMPANY, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
(Unaudited)

The following table illustrates the pro forma effect on net income (loss) and earnings (loss) per share as if the fair-value method had been applied to all outstanding and unvested awards in each period.

		Quarter Ended
		March 22,		March 23,
(in thousands, except per share amounts)		2003		2002
Net income (loss)
	As reported	$	60,788	$	(63,638	)
	Pro forma	$	60,408	$	(64,204	)
Earnings (loss) per common share – basic
	As reported	$	1.08	$	(1.13	)
	Pro forma	$	1.07	$	(1.15	)
Earnings (loss) per common share – diluted
	As reported	$	1.07	$	(1.12	)
	Pro forma	$	1.06	$	(1.13	)

8.    COMPREHENSIVE INCOME

Components of comprehensive income (loss) for the quarters ended March 22, 2003 and March 23, 2002 were as follows (in thousands):

	Quarter Ended
	March 22,			March 23,
	2003			2002
Net income (loss)	$	60,788		$	(63,638	)
Unrealized foreign currency translation (loss) gain, net		(195	)		81
Unrealized net gains on cash flow hedging instruments		4,192			680
Comprehensive income (loss)	$	64,785		$	(62,877	)

9.    GOODWILL

During the second quarter of 2002, the Company completed the two-step process of the transitional goodwill impairment test prescribed in Statement of Financial Accounting Standards No. 142 (“FAS 142”), “Goodwill and Other Intangible Assets,” with respect to existing goodwill. The transitional goodwill impairment test resulted in the Company recognizing a non-cash transitional goodwill impairment charge of $120 million in the second fiscal quarter of 2002. Details of this impairment charge can be found in Note 9 to the Consolidated Financial Statements in Item 8 of the Company’s 10-K for the year ended December 28, 2002. As required by FAS 142, net income for the first quarter of 2002 has been restated to reflect this charge in the first interim period of the year of initial adoption. The $120 million charge has been reflected as a cumulative effect of a change in accounting principle in the Company’s Condensed Consolidated Statement of Operations.

10.  COMMITMENTS AND CONTINGENCIES

The Company is involved from time to time in claims and legal actions incidental to its operations, both as plaintiff and defendant. The Company has established what management currently believes to be adequate reserves for pending legal matters. These reserves are established as part of an ongoing worldwide assessment of claims and legal actions that takes into consideration such items as changes in the pending case load (including resolved and new matters), opinions of legal counsel, individual developments in court proceedings, changes in the law, changes in business focus, changes in the litigation environment, changes in opponent strategy and tactics, new developments as a result of ongoing discovery, and past experience in defending and settling similar claims. In the opinion of management, after consultation with outside counsel, the claims or actions to which the Company is a party are not expected to have a material adverse effect, individually or in the aggregate, on the Company’s financial condition or results of operations.

A significant portion of the Company’s legal exposure relates to lawsuits pending in the United States and in several foreign countries, alleging injury as a result of exposure to the agricultural chemical DBCP (1,2-dibromo-3-chloropropane). DBCP was manufactured by several chemical companies including Dow and Shell and registered by the U.S. government for use on food crops. The Company and other growers applied DBCP on banana farms in Latin America and the Philippines and on pineapple farms in Hawaii. Specific periods of use varied among the different locations. The Company halted all purchases of DBCP, including for use in foreign countries, when the U.S. EPA cancelled the registration of DBCP for use in the United States in 1979. That cancellation was based in part on the apparent link between male sterility and exposure to DBCP among factory workers producing the product in 1977, as well as early product testing done by the manufacturers showing testicular effects on animals exposed to DBCP. To date, there is no reliable evidence

9

DOLE FOOD COMPANY, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
(Unaudited)

demonstrating that field application of DBCP led to sterility among farm workers, although that claim is made in the pending lawsuits. Nor is there any reliable scientific evidence that DBCP causes any other injuries in humans, although plaintiffs in the various actions assert claims based on cancer, birth defects and other general illnesses.

Currently there are 790 lawsuits, in various stages of proceedings, alleging injury as a result of exposure to DBCP. Eight of these lawsuits are currently pending in various jurisdictions in the United States, with the remainder pending in Latin America and the Philippines. Claimed damages total approximately $19.6 billion, with the lawsuits in Nicaragua representing 79% of this amount. In almost all of these cases, the Company is a joint defendant with the major DBCP manufacturers and, typically, other banana growers. To date, none of these lawsuits has resulted in a verdict or judgment against the Company. However, as described below, a judgment has been rendered in a DBCP case in Nicaragua.

In Nicaragua, the Company has been served in 31 of 311 pending cases, with the majority of the lawsuits brought pursuant to Law 364, an October 2000 Nicaraguan statute that contains substantive and procedural provisions that Nicaragua’s acting Attorney General formally opined are unconstitutional. Nine of the 31 cases served were consolidated into one case before a civil trial court in Managua, with the plaintiffs naming an entity denominated as “Dole Food Corporation Inc.” as a defendant. The Company is aware of no legal entity bearing that name, and the Company is certain that no such legal entity is related to the Company. As a result, the Company responded in these nine consolidated cases on behalf of Dole Fresh Fruit Company, a subsidiary of the Company, which has been named as a defendant in other pending DBCP matters, including matters brought by Nicaraguan citizens. The Company paid a $100,000 non-refundable deposit to the Nicaraguan court, as required under Law 364, to participate in the litigation. On October 25, 2002, the civil trial court in Managua issued a ruling that Dole Fresh Fruit Company was not a party to the nine consolidated cases. Thereafter, counsel for Dole Fresh Fruit Company notified the court that no legal entity known as “Dole Food Corporation Inc.” exists and offered to appear on behalf of Dole Food Company, Inc. and to ratify all prior pleadings of Dole Fresh Fruit Company. On November 25, 2002, the civil trial court issued a ruling that Dole Food Company, Inc. is not a defendant in the nine consolidated cases.

On December 13, 2002, the Nicaraguan civil trial court entered a judgment in the aggregate amount of $489 million on behalf of 468 plaintiffs against Dow Chemical Company, also known as Dow AgroSciences, Shell Chemical Company, Standard Fruit and Vegetable Company and “Dole Food Corporation Inc.” in the nine consolidated actions. Because the civil trial court had held that the Company is not a defendant in the case, the court also ordered that the Company’s $100,000 deposit be returned. Standard Fruit and Vegetable Company is a Texas corporation that is wholly unrelated to the Company.

The Company believes that the Nicaraguan civil trial court’s judgment will not be enforceable against any Dole entity in the U.S. or in any other country, because no Dole entity has been named in the judgment and Nicaragua’s Law 364 is unconstitutional and violates international due process. Among other things, Law 364 is an improper “special law” directed at particular parties, it requires defendants to pay large, non-refundable deposits in order to participate in the litigation, it provides a severely truncated procedural process, it establishes irrebutable presumption of causation that are contrary to the evidence and scientific data, and it sets unreasonable minimum damages that must be awarded. In addition, although the Company sought to participate in the case, the Nicaraguan civil trial court ruled that the Company would not be heard and that the Company’s legal motions and papers would not be considered. Finally, as previously noted, the civil trial court ruled that neither Dole Food Company, Inc. nor Dole Fresh Fruit Company is a defendant in the case. For these reasons, the Company does not believe a U.S. court or that of any other nation would enforce this judgment.

As to all the DBCP matters, the Company has denied liability and asserted substantial defenses. Although no assurance can be given concerning the outcome of these cases, in the opinion of management, after consultation with legal counsel and based on past experience defending and settling DBCP claims, the pending lawsuits are not expected to have a material adverse effect on the Company’s financial condition or results of operations.

11.  INCOME TAXES

The income tax provision of approximately $13 million for the quarter ended March 22, 2003 reflects the Company’s effective income tax rate for the quarter of 18%. The income tax provision of approximately $26 million for the first quarter of 2002 reflects the Company’s then expected effective tax rate for the full fiscal year of 32%. For both the quarters ended March 22, 2003 and March 23, 2002, the Company’s effective tax rate differs from the U.S. federal statutory rate primarily due to earnings from operations being taxed in foreign jurisdictions at a net effective rate lower than the U.S. rate. No U.S. taxes have been provided on these earnings because such earnings are intended to be indefinitely invested outside the U.S.

As a result of the consummation of the transaction described in Note 12, the income tax provision for the quarter ended March 22, 2003 was based on earnings for the period from December 29, 2002 through March 28, 2003, to reflect the final separate financial reporting period for the Company in its predecessor form. After the consummation of the going-private transaction, the results of operations will be attributable to a new successor company. The income tax provision for the quarter ended March 23, 2002 was determined based on the Company’s best estimate of the effective tax rate expected to be applicable for the full fiscal year on an ongoing basis.

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DOLE FOOD COMPANY, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
(Unaudited)

12.  GOING-PRIVATE MERGER TRANSACTION

On December 18, 2002, the Company signed a definitive merger agreement with David H. Murdock, the Company’s Chairman and Chief Executive Officer, pursuant to which Mr. Murdock would acquire the approximately 76% of the Company’s common stock that he and his affiliates did not already own for $33.50 per share in cash. On March 26, 2003, subsequent to the end of the first quarter of 2003, the merger was approved at a special meeting of the Company’s stockholders. The transaction was successfully completed on March 28, 2003 and the Company became wholly owned by Mr. Murdock through DHM Holding Company, Inc., a Delaware corporation (“HoldCo”). As a result of the transaction, the Company’s outstanding shares of common stock were retired and all outstanding stock options have been settled in cash.

The purchase price of all of the outstanding common stock of the Company not already owned by Mr. Murdock and his affiliates, plus transaction costs, is estimated at approximately $1.54 billion. The funds necessary to purchase these shares of the Company consisted of a $125 million capital contribution by HoldCo, funds borrowed under $1.125 billion of new senior secured credit facilities (consisting of $825 million of term loan facilities and $300 million of revolving credit facilities) and the issuance of $475 million principal amount of 8.875% Senior Notes due 2011. The new Senior Notes were offered within the United States only to qualified institutional investors pursuant to Rule 144A under the Securities Act of 1933 (the “Securities Act”) and to persons outside the United States in compliance with Regulation S under the Securities Act. The Credit Agreement with respect to the new senior secured credit facilities and the Indenture with respect to the new Senior Notes contain significant restrictions and covenants affecting, among other things, the operations and finances of the Company and its subsidiaries. The Credit Agreement and the Indenture are attached to this Form 10-Q as Exhibits 4.1 and 4.10, respectively.

In addition, on March 28, 2003, the Company defeased its 7% Senior Notes due 2003 and redeemed its 6.375% Senior Notes due 2005 that had outstanding balances of approximately $210 million and $300 million, respectively, at March 22, 2003. The Company’s 7.25% Senior Notes due 2009 and 7.875% Debentures due 2013 remain outstanding; however, the terms of both the Senior Notes due 2009 and Debentures due 2013 were modified to provide for substantially the same interest rates, covenants and guarantees from certain of the Company’s subsidiaries as are provided for by the new Senior Notes. The modifications provide for interest at 8.625% on the Senior Notes due 2009 and 8.75% on the Debentures due 2013.

Subsequent to the end of the quarter, and in connection with the transaction, the Company sold its interest in an aircraft under an operating sale-leaseback agreement for approximately $29 million, which approximated its book value. The Company also purchased shipping containers for approximately $77 million that were previously leased under separate capital and operating lease agreements and modified the provisions of its corporate headquarters operating lease to provide for substantially the same interest rate as the new senior secured credit facilities.

The acquisition will be accounted for as a purchase by HoldCo with the related purchase accounting pushed down to the Company. The allocation of the purchase price to the assets and liabilities of the Company has not been completed; however, after completion, the Company’s consolidated financial statements may be significantly different from those presented historically.

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ITEM 2.
MANAGEMENT’S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
DOLE FOOD COMPANY, INC.

Results of Operations

     The Company’s management evaluates and monitors segment performance primarily through earnings before interest expense and income taxes (“EBIT”). EBIT, which is disclosed as a line item in the Condensed Consolidated Statements of Operations, is calculated by adding interest income and other income (expense) - net to operating income. Management believes that segment EBIT provides useful information for analyzing the underlying business results as well as allowing investors a means to evaluate the financial results of each segment in relation to the Company as a whole. EBIT is not defined under accounting principles generally accepted in the United States of America (“GAAP”) and should not be considered in isolation or as a substitute for net income or cash flow measures prepared in accordance with GAAP or as a measure of the Company’s profitability or liquidity. Additionally, the Company’s computation of EBIT may not be comparable to other similarly titled measures computed by other companies, because all companies do not calculate EBIT in the same fashion.

     Revenues from external customers and EBIT for the reportable operating segments and corporate and other were as follows (in thousands):

		Quarter Ended
		March 22,			March 23,
		2003			2002
Revenues from external customers
	Fresh fruit	$	725,115		$	650,743
	Fresh vegetables		176,865			223,977
	Packaged foods		116,712			127,889
	Fresh-cut flowers		48,506			52,802
	Other operating segments		5,972			4,004
		$	1,073,170		$	1,059,415
EBIT
	Fresh fruit	$	70,174		$	46,807
	Fresh vegetables		16,703			43,723
	Packaged foods		11,693			13,411
	Fresh-cut flowers		6,394			3,104
	Other operating segments		65			7
	Total operating segments		105,029			107,052
	Corporate and other		(11,494	)		(9,757	)
		$	93,535		$	97,295

Fresh Fruit

     Fresh fruit revenues in the first quarter of 2003 increased 11% to $725 million from $651 million in the first quarter of 2002. The increase in fresh fruit revenues in the first quarter was primarily due to favorable foreign currency exchange rates, higher volumes of bananas sold in Asia and higher volumes of DOLE PREMIUM SELECT® pineapples sold in North America and Europe. These increases were partially offset by lower pricing of pineapples in North America, lower local pricing of bananas in Europe and Asia and lower local pricing of pineapples in Europe. In the current quarter, stronger euro, Japanese yen and Swedish krona exchange rates versus the U.S. dollar, positively impacted revenues by approximately $63 million.

     Fresh fruit EBIT in the first quarter of 2003 increased to $70 million from $47 million in the first quarter of 2002. EBIT increased primarily due to the same factors that drove the increase in revenues. In addition, EBIT for first quarter benefited from the absence of a $4 million legal expense in the first quarter of 2002 related to DBCP litigation. Favorable exchange rates positively impacted EBIT for the quarter by approximately $14 million.

Fresh Vegetables

     Fresh vegetables revenues for the first quarter of 2003 decreased to $177 million from $224 million in the first quarter of 2002. The decrease in first quarter revenues was mainly attributable to significantly lower North American commodity vegetable prices, primarily due to an industry-wide lettuce shortage in 2002, and the disposition of all of the Company’s interest in Pascual Hermanos, S.A. (“Pascual Hermanos”) in the third quarter of 2002, partially offset by higher commodity vegetable and packaged salads volumes. Pascual Hermanos revenues were approximately $16 million in the first quarter of 2002.

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     Fresh vegetables EBIT for the first quarter of 2003 decreased to $17 million from $44 million in the first quarter of 2002. The decrease in first quarter EBIT was primarily due to the same factors that drove the decrease in revenues, partially offset by lower commodity growing costs. Pascual Hermanos EBIT was approximately $6 million in the first quarter of 2002.

Packaged Foods

     Packaged foods revenues for the first quarter of 2003 decreased to $117 million from $128 million in the first quarter of 2002. The decrease in revenues for the quarter was due to lower volumes of processed pineapples in Asia and North America, lower local pricing of processed pineapples in Asia and the disposal of Saman S.A. (“Saman”) during the third quarter of 2002. The lower volumes of processed pineapples was mainly due to timing of the Easter holiday. In 2002, Easter occurred in the first quarter, whereas Easter occurred in the second quarter in 2003. The decrease was partially offset by higher volumes of the Company’s FRUIT BOWLS® and FRUIT-N-GEL BOWLS™ products and slightly higher pricing in North America. Saman revenues were approximately $8 million in the first quarter of 2002.

     EBIT in the packaged foods segment for the first quarter of 2003 decreased to $12 million from $13 million in the first quarter of 2002. EBIT for the quarter decreased primarily due to the same factors that drove the decrease in revenues with the exception of the disposal of Saman, which had a positive impact on EBIT due to an operating loss of approximately $1 million in the first quarter of 2002. EBIT was further impacted by higher advertising costs primarily to promote the Company’s FRUIT BOWLS and FRUIT-N-GEL BOWLS products. The decrease in EBIT was partially offset by lower product costs mainly due to decreased packaging costs in Asia.

Fresh-Cut Flowers

     Fresh-cut flowers revenues for the first quarter of 2003 decreased to $49 million from $53 million in the first quarter of 2002. The decrease in revenues for the quarter was due to lower pricing, primarily in the wholesale commodity sector, and lower volumes. The Company continues to right-size this business to match volumes with market demand.

     EBIT in the fresh-cut flowers segment for the first quarter of 2003 increased to $6 million from $3 million in the first quarter of 2002. EBIT for the quarter benefited from lower operating costs primarily as a result of the closure during 2002 of five production farms in Colombia and one in Mexico and favorable foreign currency exchange rates, primarily between the U.S. dollar and the Colombian Peso, resulting in lower U.S. dollar equivalent product costs.

Corporate and Other

     Corporate and other EBIT decreased in the first quarter of 2003 to a loss of $11 million from a loss of $10 million in the first quarter of 2002. The decrease in EBIT is primarily due to slightly higher consulting costs, long-term employee incentive costs and transportation expenses, partially offset by the absence of a write down of a note receivable, which occurred in the first quarter of 2002.

Interest Expense and Income Taxes

     Interest expense for the first quarter of 2003 was $20 million compared to $15 million in the first quarter of 2002. Interest expense increased in the quarter as a result of higher average debt levels resulting mainly from the issuance of $400 million 7.25% unsecured senior notes due 2009 during the second quarter of 2002.

     The income tax provision of approximately $13 million for the quarter ended March 22, 2003 reflects the Company’s effective income tax rate for the quarter of 18%. The income tax provision of approximately $26 million for the first quarter of 2002 reflects the Company’s then expected effective tax rate for the full fiscal year of 32%. For both the quarters ended March 22, 2003 and March 23, 2002, the Company’s effective tax rate differs from the U.S. federal statutory rate primarily due to earnings from operations being taxed in foreign jurisdictions at a net effective rate lower than the U.S. rate. No U.S. taxes have been provided on these earnings because such earnings are intended to be indefinitely invested outside the U.S.

     As a result of the consummation of the transaction described in Note 12 to the Condensed Consolidated Financial Statements, the income tax provision for the quarter ended March 22, 2003 was based on earnings for the period from December 29, 2002 through March 28, 2003, to reflect the final separate financial reporting period for the Company in its predecessor form. After the consummation of the going-private transaction, the results of operations will be attributable to a new successor company. The income tax provision for the quarter ended March 23, 2002 was determined based on the Company’s best estimate of the effective tax rate expected to be applicable for the full fiscal year on an ongoing basis.

Other

     During the second quarter of 2002, the Company completed the two-step process of the transitional goodwill impairment test prescribed in Statement of Financial Accounting Standards No. 142 (“FAS 142”), “Goodwill and Other Intangible Assets.” The transitional goodwill impairment test resulted in the Company recognizing a non-cash transitional goodwill impairment charge of $120 million related entirely to the fresh-cut flowers reporting unit. As required by FAS 142, the $120 million charge has been retroactively reflected in the first quarter of 2002 as a cumulative effect of a change in accounting principle in the Company’s Condensed Consolidated Statement of Operations.

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     The Company distributes its products in more than 90 countries throughout the world. Some of the Company’s costs are incurred in currencies different from those received from the sale of products. Its international sales are mainly transacted in U.S. dollars, and euro, Swedish krona and Japanese yen currencies. Since the Company transacts business throughout the world, it is subject to risks associated with fluctuations in foreign currency exchange rates, primarily the euro, the Swedish krona and the Japanese yen. During the first quarter of 2003, these three currencies strengthened against the U.S. dollar, resulting in higher revenues for the quarter. The ultimate impact of future changes to these and other currency exchange rates in 2003 is not determinable at this time.

Going-Private Merger Transaction

     On December 18, 2002, the Company signed a definitive merger agreement with David H. Murdock, the Company’s Chairman and Chief Executive Officer, pursuant to which Mr. Murdock would acquire the approximately 76% of the Company’s common stock that he and his affiliates did not already own for $33.50 per share in cash. On March 26, 2003, subsequent to the end of the first quarter of 2003, the merger was approved at a special meeting of the Company’s stockholders. The transaction was successfully completed on March 28, 2003 and the Company became wholly owned by Mr. Murdock through DHM Holding Company, Inc., a Delaware corporation (“HoldCo”). As a result of the transaction, the Company’s outstanding shares of common stock were retired and all outstanding stock options have been settled in cash.

     The purchase price of all of the outstanding common stock of the Company not already owned by Mr. Murdock and his affiliates, plus transaction costs, is estimated at approximately $1.54 billion. The funds necessary to purchase these shares of the Company consisted of a $125 million capital contribution by HoldCo, funds borrowed under $1.125 billion of new senior secured credit facilities (consisting of $825 million of term loan facilities and $300 million of revolving credit facilities) and the issuance of $475 million principal amount of 8.875% Senior Notes due 2011. The new Senior Notes were offered within the United States only to qualified institutional investors pursuant to Rule 144A under the Securities Act of 1933 (the “Securities Act”) and to persons outside the United States in compliance with Regulation S under the Securities Act. The Credit Agreement with respect to the new senior secured credit facilities and the Indenture with respect to the new Senior Notes contain significant restrictions and covenants affecting, among other things, the operations and finances of the Company and its subsidiaries. The Credit Agreement and the Indenture are attached to this Form 10-Q as Exhibits 4.1 and 4.10, respectively.

     In addition, on March 28, 2003, the Company defeased its 7% Senior Notes due 2003 and redeemed its 6.375% Senior Notes due 2005 that had outstanding balances of approximately $210 million and $300 million, respectively, at March 22, 2003. The Company’s 7.25% Senior Notes due 2009 and 7.875% Debentures due 2013 remain outstanding; however, the terms of both the Senior Notes due 2009 and Debentures due 2013 were modified to provide for substantially the same interest rates, covenants and guarantees from certain of the Company’s subsidiaries as are provided for by the new Senior Notes. The modifications provide for interest at 8.625% on the Senior Notes due 2009 and 8.75% on the Debentures due 2013.

     Subsequent to the end of the quarter, and in connection with the transaction, the Company sold its interest in an aircraft under an operating sale-leaseback agreement for approximately $29 million, which approximated its book value. The Company also purchased shipping containers for approximately $77 million that were previously leased under separate capital and operating lease agreements and modified the provisions of its corporate headquarters operating lease to provide for substantially the same interest rate as the new senior secured credit facilities.

     The acquisition will be accounted for as a purchase by HoldCo with the related purchase accounting pushed down to the Company. The allocation of the purchase price to the assets and liabilities of the Company has not been completed; however, after completion, the Company’s consolidated financial statements may be significantly different from those presented historically.

Adoption of New Accounting Policies

     In the first quarter of 2003 the Company adopted new accounting policies in accordance with the provisions of the following recently issued accounting pronouncements. With the exception of the adoption of a new accounting policy for special-purpose entities, which is effective from February 1, 2003, these new accounting policies are effective December 29, 2002, the first day of the Company’s 2003 fiscal year:

     Asset Retirement Obligations: In June 2001, the Financial Accounting Standards Board (“FASB”) issued Statement of Financial Accounting Standards No. 143 (“FAS 143”), “Accounting for Asset Retirement Obligations.” This standard provides accounting guidelines for the cost of legal obligations associated with the retirement of long-lived assets. FAS 143 requires that companies recognize the fair-value of a liability for asset retirement obligations in the period in which the obligations are incurred and capitalize that amount as part of the book value of the long-lived asset. The resulting net cost is then depreciated over the remaining life of the underlying long-lived asset. The adoption of FAS 143 did not have a material impact on the Company’s financial condition or results of operations.

     Restructuring Costs: In June 2002, the FASB issued Statement of Financial Accounting Standards No. 146 (“FAS 146”), “Accounting for Costs Associated with Exit or Disposal Activities.” FAS 146 addresses financial accounting and reporting for costs associated with exit or disposal activities and nullifies Emerging Issues Task Force Issue No. 94-3 (“EITF 94-3”), “Liability Recognition for Certain Employee Termination Benefits and Other Costs to Exit an Activity (including Certain Costs Incurred in a Restructuring).” This statement requires that the fair-value of an initial liability for a cost associated with an exit or disposal activity be recognized when the liability is incurred as opposed

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to when the entity commits to an exit plan, thereby eliminating the definition and requirements for recognition of exit costs. The adoption of FAS 146 did not have a material impact on the Company’s financial condition or results of operations.

     Guarantees: In November 2002, the FASB issued FASB Interpretation No. 45 (“FIN 45”), “Guarantor’s Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others.” FIN 45 elaborates on the disclosures to be made by a guarantor about its obligations under certain types of guarantees. FIN 45 also clarifies that a guarantor is required to recognize, at the inception of a guarantee, a liability for the fair-value of the obligation undertaken in issuing the guarantee. FIN 45 specifically identifies obligations that are excluded from the provisions related to recognizing a liability at inception; however, these guarantees are subject to the disclosure requirements of FIN 45. The recognition and measurement provisions of FIN 45 are applicable on a prospective basis to guarantees issued or modified after the beginning of the fiscal year in which FIN 45 is adopted. The adoption of FIN 45 did not have a material impact on the Company’s financial condition or results of operations.

     Stock-Based Compensation: In December 2002, the FASB issued Statement of Financial Accounting Standards No. 148 (“FAS 148”), “Accounting for Stock-Based Compensation - Transition and Disclosure, an amendment of FASB Statement No. 123.” FAS 148 amends Statement of Financial Accounting Standards No. 123 (“FAS 123”), “Accounting for Stock-Based Compensation,” to provide alternative methods of transition for a voluntary change to the fair-value based method of accounting for stock-based employee compensation. Beginning on December 29, 2002 the Company elected to adopt the fair-value method of accounting for stock-based employee compensation. Prior to December 29, 2002, the Company applied the intrinsic value method of accounting for stock options issued to employees. The Company has elected to apply the prospective method of adoption outlined in FAS 148. The prospective method applies the recognition provisions of FAS 123 to all employee awards granted, modified or settled after the beginning of the fiscal years in which the recognition provisions are first applied. The adoption of the fair-value method of accounting for stock options issued to employees, on a prospective basis, did not have a material impact on the Company’s financial condition or results of operations for the quarter ended March 22, 2003.

     Special-Purpose Entities: In January 2003, the FASB issued FASB Interpretation No. 46 (“FIN 46”), “Consolidation of Variable Interest Entities.” This standard clarifies the application of Accounting Research Bulletin No. 51, “Consolidated Financial Statements,” and addresses consolidation by business enterprises of variable interest entities (more commonly know as Special-Purpose Entities or SPEs). FIN 46 requires existing unconsolidated variable interest entities to be consolidated by their primary beneficiaries if the entities do not effectively disperse risk among the parties involved. FIN 46 also significantly enhances the disclosure requirements related to variable interest entities. This statement is effective for variable interest entities created or in which an enterprise obtains an interest after January 31, 2003. It applies in the first fiscal year or interim period beginning after June 15, 2003, for all interests in variable entities acquired before February 1, 2003 and will therefore be applicable to these entities in the Company’s third quarter of 2003. The Company had no new interests in variable interest entities in the first quarter of 2003. The Company is in the process of evaluating the impact of this statement on its financial condition and results of operations as a result of interests the Company has in variable interest entities acquired prior to February 1, 2003.

Liquidity and Capital Resources

     Cash flows provided by operating activities increased to $1 million in the first quarter of 2003 from cash used in operations of $50 million in the first quarter of 2002. The increase was primarily a result of a lower increase in net working capital (receivables, inventories and prepaid and other assets less accounts payable and accrued liabilities) in the first quarter of 2003, compared to the increase in net working capital in the first quarter of 2002. The lower increase in net working capital was partially due to a $12 million net tax refund received in the first quarter of 2003. In the first quarter of 2003, improved cash flows from operations were also impacted by higher earnings.

     Cash flows used in investing activities decreased to $2 million in the first quarter of 2003 from $9 million in the first quarter of 2002. The decrease is primarily a result of lower capital expenditures partially offset by lower proceeds from the sale of assets.

     The Company uses net debt (total debt less cash) as a supplementary measure of leverage. Net debt is not defined under GAAP and should not be considered in isolation as an indicator of leverage. Additionally, the Company’s calculation of net debt may not be comparable to other similarly titled measures computed by other companies. During the first quarter of 2003, net debt (derived by subtracting cash of $641 million from total debt of $1.125 billion) increased by approximately $7 million to $484 million. The increase during the first quarter of 2003 was primarily due to slightly lower cash balances, primarily due to the payment of dividends and capital additions in the first quarter, partially offset by proceeds from the exercise of stock options and slightly positive cash flows from operations. The Company’s net debt to net debt and equity percentage decreased to 38% at the end of the first quarter of 2003 from 39% at the end of 2002. The consummation of the going-private merger transaction on March 28, 2003 will result in significantly higher net debt for the Company beginning in the second quarter of 2003. Refer to the discussion of the transaction for further details.

     As of March 22, 2003, the Company had no outstanding balances under its uncommitted lines of credit and no outstanding borrowings under its $400 million, 5-year revolving credit facility. Provisions under these facilities require the Company to comply with certain financial covenants that include a maximum permitted ratio of consolidated debt to net worth and a minimum required fixed charge coverage ratio. As of March 22, 2003, the Company was in compliance with these covenants. In connection with the consummation of the going-private merger transaction on March 28, 2003, the $400 million facility was cancelled.

     In connection with the going-private merger transaction, which closed on March 28, 2003, the Company and certain of its subsidiaries entered into $1.125 billion of new senior secured credit facilities (consisting of $825 million of term loan facilities and $300 million of

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revolving credit facilities) and issued $475 million principal amount of 8.875% Senior Notes due 2011. The Credit Agreement and the Indenture are attached to this Form 10-Q as Exhibits 4.1 and 4.10, respectively.

     After the completion of the going-private merger transaction, the Company believes that its remaining cash balances, cash flow from operations and available borrowings under the revolving credit portion of the new senior secured credit facility will enable it to meet its working capital, capital expenditure, revolving and term debt maturity and other funding requirements.

     Factors impacting the Company’s cash flow from operations include such items as commodity prices, interest rates and foreign currency exchange rates, among other things, as set forth in the Company’s Form 10-K for the fiscal year ended December 28, 2002 and in subsequent SEC filings and as set forth in Item 3 below.

     Supplemental Financial Information

     The following financial information has been presented as management believes that it is useful information to some readers of the Company’s consolidated financial statements.

	March 22,		March 23,
(in thousands)	2003		2002
Balance Sheet Data:
Total working capital	$	765,686	$	553,561
Total assets	$	3,084,182	$	2,663,810
Total debt	$	1,125,477	$	832,650
Total shareholders’ equity	$	804,731	$	657,582

	Quarter Ended
	March 22,			March 23,
(in thousands)	2003			2002
Other Financial Data:
Income from operations, net of income taxes	$	60,788		$	56,279
Interest expense		19,647			14,531
Income taxes		13,100			26,485
Depreciation and amortization		25,295			21,910
EBITDA	$	118,830		$	119,205
EBITDA margin		11.1	%		11.3	%
Capital expenditures	$	3,827		$	16,637
Cash paid for interest	$	8,239		$	8,716

     “EBITDA” is defined as earnings before interest expense, income taxes, and depreciation and amortization. EBITDA margin is defined as the ratio of EBITDA, as defined, relative to net revenues. EBITDA and EBITDA margin fluctuated primarily due to the same factors that impacted the changes in EBIT discussed earlier.

     The Company presents EBITDA and EBITDA margin because management believes, similar to EBIT, EBITDA is a useful performance measure for the Company. In addition, EBITDA is presented because management believes it is frequently used by securities analysts, investors and others in the evaluation of companies and because certain debt covenants on the Company’s recently issued Senior Notes are tied to EBITDA. EBITDA and EBITDA margin should not be considered in isolation from or as a substitute for net income, cash flows from operating activities and other consolidated income or cash flow statement data prepared in accordance with GAAP or as a measure of profitability or liquidity. Additionally, the Company’s computation of EBITDA and EBITDA margin may not be comparable to other similarly titled measures computed by other companies, because all companies do not calculate EBITDA and EBITDA margin in the same manner.

Other Matters

     Financial Instruments: During the first quarter of 2003, the Company entered into additional foreign currency exchange forward contracts. These contracts are denominated in Japanese yen and euro and are designated as hedges under Statement of Financial Accounting Standards No. 133 (“FAS 133”), “Accounting for Derivative Instruments and Hedging Activities.” At March 22, 2003, the outstanding notional amount of the Company’s euro and Japanese yen foreign currency exchange forwards totaled $142 million.

     During the first quarter of 2003 the Company also entered into short-term fuel hedges to partially mitigate the Company’s exposure to significant bunker fuel fluctuations. Due to their short-term nature, these contracts have not been designated as hedges under FAS 133. The

16

remeasurement of these contracts to fair value at March 22, 2003 did not have a material impact on the Company’s results of operations in the first quarter. These contracts will mature in the second quarter of 2003.

     This filing contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 that involve a number of risks and uncertainties. Forward looking statements, which are based on management’s current expectations, are generally identifiable by the use of terms such as “may,” “anticipate,” “will,” “expect,” “believe,” or similar expressions. The potential risks and uncertainties that could cause the Company’s actual results to differ materially from those expressed or implied herein include weather-related phenomena; market responses to industry volume pressures; product and raw materials supplies and pricing; electrical power supply and pricing; changes in interest and currency exchange rates; economic crises and security risks in developing countries; quotas, tariffs and other governmental actions and international conflicts.

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ITEM 3.
QUANTITATIVE AND QUALITATIVE DISCLOSURES
ABOUT MARKET RISK

     In the quarter ended March 22, 2003, no material changes have occurred in the market risk disclosure presented in the Company’s Annual Report on Form 10-K for the year ended December 28, 2002.

     On March 28, 2003, the Company completed the merger described in Note 12 to the Condensed Consolidated Financial Statements. As a result, the Company issued additional debt in the form of senior debt securities and variable-rate term loan and revolving credit facilities, defeased its 7% Notes due 2003, redeemed its 6.375% Senior Notes due 2005 and modified the terms of its Senior Notes due 2009 and Debentures due 2013. In addition, the Company purchased shipping containers that were previously under both capital and operating leases. The purchase eliminated the Company’s obligations under these variable-rate capital and variable-rate operating leases. The new debt, debt modification and partial repayment of existing debt and lease obligations substantially change the Company’s exposure to interest rate fluctuations that occur after March 28, 2003. After giving effect to the above-mentioned changes, the Company estimates that a 100 basis point change in LIBOR would impact its annual pre tax income by approximately $11 million.

ITEM 4.
CONTROLS AND PROCEDURES

     Dole management, including the Chairman and Chief Executive Officer and the Vice President and Chief Financial Officer, have evaluated the effectiveness of Dole’s disclosure controls and procedures pursuant to Rule 13a-14(c) under the Securities Act of 1934, as amended, as of a date within 90 days prior to the date this quarterly report was filed. Based on this evaluation, the Chairman and Chief Executive Officer and the Vice President and Chief Financial Officer have concluded that Dole’s disclosure controls and procedures are effective for the purpose of ensuring that material information required to be included in the quarterly report is made known to them on a timely basis. There have been no significant changes in the Company’s internal controls, or in factors that could significantly affect internal controls subsequent to the date of completion of this evaluation.

PART II.
OTHER INFORMATION
DOLE FOOD COMPANY, INC.

Item 1. Legal Proceedings

     The Company is involved from time to time in claims and legal actions incidental to its operations, both as plaintiff and defendant. The Company has established what management currently believes to be adequate reserves for pending legal matters. These reserves are established as part of an ongoing worldwide assessment of claims and legal actions that takes into consideration such items as changes in the pending case load (including resolved and new matters), opinions of legal counsel, individual developments in court proceedings, changes in the law, changes in business focus, changes in the litigation environment, changes in opponent strategy and tactics, new developments as a result of ongoing discovery, and past experience in defending and settling similar claims. In the opinion of management, after consultation with outside counsel, the claims or actions to which the Company is a party are not expected to have a material adverse effect, individually or in the aggregate, on the Company’s financial condition or results of operations.

     A significant portion of the Company’s legal exposure relates to lawsuits pending in the United States and in several foreign countries, alleging injury as a result of exposure to the agricultural chemical DBCP (1,2-dibromo-3-chloropropane). DBCP was manufactured by several chemical companies including Dow and Shell and registered by the U.S. government for use on food crops. The Company and other growers applied DBCP on banana farms in Latin America and the Philippines and on pineapple farms in Hawaii. Specific periods of use varied among the different locations. The Company halted all purchases of DBCP, including for use in foreign countries, when the U.S. EPA cancelled the registration of DBCP for use in the United States in 1979. That cancellation was based in part on the apparent link between male sterility and exposure to DBCP among factory workers producing the product in 1977, as well as early product testing done by the manufacturers showing testicular effects on animals exposed to DBCP. To date, there is no reliable evidence demonstrating that field application of DBCP led to sterility among farm workers, although that claim is made in the pending lawsuits. Nor is there any reliable scientific evidence that DBCP causes any other injuries in humans, although plaintiffs in the various actions assert claims based on cancer, birth defects and other general illnesses.

     Currently there are 790 lawsuits, in various stages of proceedings, alleging injury as a result of exposure to DBCP. Eight of these lawsuits are currently pending in various jurisdictions in the United States, with the remainder pending in Latin America and the Philippines. Claimed damages total approximately $19.6 billion, with the lawsuits in Nicaragua representing 79% of this amount. In almost all of these cases, the Company is a joint defendant with the major DBCP manufacturers and, typically, other banana growers. To date, none of these lawsuits has

18

resulted in a verdict or judgment against the Company. However, as described below, a judgment has been rendered in a DBCP case in Nicaragua.

     In Nicaragua, the Company has been served in 31 of 311 pending cases, with the majority of the lawsuits brought pursuant to Law 364, an October 2000 Nicaraguan statute that contains substantive and procedural provisions that Nicaragua’s acting Attorney General formally opined are unconstitutional. Nine of the 31 cases served were consolidated into one case before a civil trial court in Managua, with the plaintiffs naming an entity denominated as “Dole Food Corporation Inc.” as a defendant. The Company is aware of no legal entity bearing that name, and the Company is certain that no such legal entity is related to the Company. As a result, the Company responded in these nine consolidated cases on behalf of Dole Fresh Fruit Company, a subsidiary of the Company, which has been named as a defendant in other pending DBCP matters, including matters brought by Nicaraguan citizens. The Company paid a $100,000 non-refundable deposit to the Nicaraguan court, as required under Law 364, to participate in the litigation. On October 25, 2002, the civil trial court in Managua issued a ruling that Dole Fresh Fruit Company was not a party to the nine consolidated cases. Thereafter, counsel for Dole Fresh Fruit Company notified the court that no legal entity known as “Dole Food Corporation Inc.” exists and offered to appear on behalf of Dole Food Company, Inc. and to ratify all prior pleadings of Dole Fresh Fruit Company. On November 25, 2002, the civil trial court issued a ruling that Dole Food Company, Inc. is not a defendant in the nine consolidated cases.

     On December 13, 2002, the Nicaraguan civil trial court entered a judgment in the aggregate amount of $489 million on behalf of 468 plaintiffs against Dow Chemical Company, also known as Dow AgroSciences, Shell Chemical Company, Standard Fruit and Vegetable Company and “Dole Food Corporation Inc.” in the nine consolidated actions. Because the civil trial court had held that the Company is not a defendant in the case, the court also ordered that the Company’s $100,000 deposit be returned. Standard Fruit and Vegetable Company is a Texas corporation that is wholly unrelated to the Company.

     The Company believes that the Nicaraguan civil trial court’s judgment will not be enforceable against any Dole entity in the U.S. or in any other country, because no Dole entity has been named in the judgment and Nicaragua’s Law 364 is unconstitutional and violates international due process. Among other things, Law 364 is an improper “special law” directed at particular parties, it requires defendants to pay large, non-refundable deposits in order to participate in the litigation, it provides a severely truncated procedural process, it establishes irrebutable presumption of causation that are contrary to the evidence and scientific data, and it sets unreasonable minimum damages that must be awarded. In addition, although the Company sought to participate in the case, the Nicaraguan civil trial court ruled that the Company would not be heard and that the Company’s legal motions and papers would not be considered. Finally, as previously noted, the civil trial court ruled that neither Dole Food Company, Inc. nor Dole Fresh Fruit Company is a defendant in the case. For these reasons, the Company does not believe a U.S. court or that of any other nation would enforce this judgment.

     As to all the DBCP matters, the Company has denied liability and asserted substantial defenses. Although no assurance can be given concerning the outcome of these cases, in the opinion of management, after consultation with legal counsel and based on past experience defending and settling DBCP claims, the pending lawsuits are not expected to have a material adverse effect on the Company’s financial condition or results of operations.

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Item 6. Exhibits and Reports on Form 8-K

(a) Exhibits:

Exhibit
Number
	3.1	Certificate of Incorporation
	3.2	By-Laws
	4.1	Credit Agreement dated as of March 28, 2003 among DHM Holding Company, Inc., Dole Food Company, Inc., Solvest, Ltd., Various Lending Institutions, Deutsche Bank AG New York Branch, as Administrative Agent, The Bank of Nova Scotia and Banc of America Securities LLC, as Co-Syndication Agents, and Fleet National Bank and Societe Generale, as Co-Documentation Agents.
	4.10	Indenture dated as of March 28, 2003 among Dole Food Company, Inc., as Issuer, the guarantors party thereto, as Guarantors, and Wells Fargo, National Association as Trustee.
	4.11	Registration Rights Agreement dated as of March 28, 2003 among Dole Food Company, Inc. and the guarantors named therein, as Issuers, and Deutsche Bank Securities Inc., Banc Of America Securities LLC, Scotia Capital (USA) Inc., Fleet Securities, Inc., SG Cowen Securities Corporation, and BMO Nesbitt Burns Corp., as Initial Purchasers.

(b)	Reports on Form 8-K:
	On March 4, 2003, Dole Food Company, Inc. filed a Current Report on Form 8-K to report that it had issued a press release announcing its intent to offer $375 million of senior notes and the intent of its new proposed holding company, DHM Holding Company, Inc. (“DHM Holdings”), to offer $75 million of senior notes, in each case in transactions exempt from the registration requirements of the Securities Act of 1933.
	On March 5, 2003, Dole Food Company, Inc. filed a Current Report on Form 8-K to report its audited financial statements and management’s discussion and analysis of financial condition and results of operations for the fiscal year ended December 28, 2002.
	On March 18, 2003, Dole Food Company, Inc. (“Dole”) filed a Current Report on Form 8-K to report that it had issued a press release announcing that it had priced at par an offering of $475 million principal amount of 8.875% Senior Notes due 2011, with interest payable semi-annually in cash. The notes were offered within the United States only to qualified institutional investors pursuant to Rule 144A under the Securities Act of 1933 (the “Securities Act”) and to persons outside the United States in compliance with Regulation S under the Securities Act. The Form 8-K reported that Dole no longer anticipated that DHM Holding Company, Inc. would offer $75 million of senior notes. The Form 8-K also reported that Dole had issued a press release announcing it had agreed to revise the terms of the $400 million of its 7.25% Senior Notes due 2009 (the “2009 Notes”) and the $155 million of its 7.875% Debentures due 2013 (the “2013 Debentures”), so as to provide for interest payments at new rates of 8.625% per annum and 8.75%, respectively, and to provide for substantially similar covenants and senior subordinated guarantees as under Dole’s new 2011 Senior Notes.

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SIGNATURES

     Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

		DOLE FOOD COMPANY, INC. REGISTRANT
May 6, 2003	By:		/s/ RICHARD J. DAHL
			Richard J. Dahl
			Vice President and
			Chief Financial Officer
	By:		/s/ YOON J. HUGH
			Yoon J. Hugh
		Controller and Chief Accounting Officer
			(Principal Accounting Officer)

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CERTIFICATIONS

I, David H. Murdock, Chairman and Chief Executive Officer, certify that:

     1.    I have reviewed this quarterly report on Form 10-Q of Dole Food Company, Inc.;

     2.    Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this quarterly report;

     3.    Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report;

     4.     The registrant’s other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:

     a)    Designed such disclosure controls and procedures to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared;

     b)    Evaluated the effectiveness of the registrant’s disclosure controls and procedures as of a date within 90 days prior to the filing date of this quarterly report (the “Evaluation Date”); and

     c)    Presented in this quarterly report our conclusions about the effectiveness of the disclosure controls and procedures based on our evaluation as of the Evaluation Date;

     5.    The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent function):

     a)    all significant deficiencies in the design or operation of internal controls which could adversely affect the registrant’s ability to record, process, summarize and report financial data and have identified for the registrant’s auditors any material weaknesses in internal controls; and

     b)    any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal controls; and

     6.    The registrant’s other certifying officers and I have indicated in this quarterly report whether or not there were significant changes in internal controls or in other factors that could significantly affect internal controls subsequent to the date of our most recent evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses.

May 6, 2003

/s/ DAVID H. MURDOCK

David H. Murdock

Chairman and Chief Executive Officer

22

CERTIFICATIONS

I, Richard J. Dahl, Vice President and Chief Financial Officer, certify that:

     1.    I have reviewed this quarterly report on Form 10-Q of Dole Food Company, Inc.;

     2.    Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this quarterly report;

     3.    Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report;

     4.    The registrant’s other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:

     a)    Designed such disclosure controls and procedures to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared;

     b)    Evaluated the effectiveness of the registrant’s disclosure controls and procedures as of a date within 90 days prior to the filing date of this quarterly report (the “Evaluation Date”); and

     c)    Presented in this quarterly report our conclusions about the effectiveness of the disclosure controls and procedures based on our evaluation as of the Evaluation Date;

     5.    The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent function):

     a)    all significant deficiencies in the design or operation of internal controls which could adversely affect the registrant’s ability to record, process, summarize and report financial data and have identified for the registrant’s auditors any material weaknesses in internal controls; and

     b)    any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal controls; and

     6.    The registrant’s other certifying officers and I have indicated in this quarterly report whether or not there were significant changes in internal controls or in other factors that could significantly affect internal controls subsequent to the date of our most recent evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses.

May 6, 2003

/s/RICHARD J. DAHL

Richard J. Dahl

Vice President and Chief Financial Officer

23

CERTIFICATION OF CHIEF EXECUTIVE OFFICER
OF DOLE FOOD COMPANY, INC.

This certification is provided pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1350, and is filed with respect to the quarterly report on Form 10-Q (the “Form 10-Q”) for the quarter ended March 22, 2003 of Dole Food Company, Inc. (the “Issuer”). I, David H. Murdock, Chairman of the Board and Chief Executive Officer of the Issuer, certify that to the best of my knowledge:

(i)	the Form 10-Q fully complies with the requirements of Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a) or 78o(d)); and
(ii)	the information contained in the Form 10-Q fairly presents, in all material respects, the financial condition and results of operations of the Issuer.

Dated: May 6, 2003

/s/ DAVID H. MURDOCK

David H. Murdock

Chairman and Chief Executive Officer

24

CERTIFICATION OF CHIEF FINANCIAL OFFICER
OF DOLE FOOD COMPANY, INC.

This certification is provided pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1350, and is filed with respect to the quarterly report on Form 10-Q (the “Form 10-Q”) for the quarter ended March 22, 2003 of Dole Food Company, Inc. (the “Issuer”). I, Richard J. Dahl, Vice President and Chief Financial Officer of the Issuer, certify that to the best of my knowledge:

(i)	the Form 10-Q fully complies with the requirements of Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a) or 78o(d)); and
(ii)	the information contained in the Form 10-Q fairly presents, in all material respects, the financial condition and results of operations of the Issuer.

Dated: May 6, 2003

/s/ RICHARD J. DAHL

Richard J. Dahl

Vice President and Chief Financial Officer

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EXHIBIT INDEX

Exhibit
Number
	3.1	Certificate of Incorporation
	3.2	By-Laws
	4.1	Credit Agreement dated as of March 28, 2003 among DHM Holding Company, Inc., Dole Food Company, Inc., Solvest, Ltd., Various Lending Institutions, Deutsche Bank AG New York Branch, as Administrative Agent, The Bank of Nova Scotia and Banc of America Securities LLC, as Co-Syndication Agents, and Fleet National Bank and Societe Generale, as Co-Documentation Agents.
	4.10	Indenture dated as of March 28, 2003 among Dole Food Company, Inc., as Issuer, the guarantors party thereto, as Guarantors, and Wells Fargo, National Association as Trustee.
	4.11	Registration Rights Agreement dated as of March 28, 2003 among Dole Food Company, Inc. and the guarantors named therein, as Issuers, and Deutsche Bank Securities Inc., Banc Of America Securities LLC, Scotia Capital (USA) Inc., Fleet Securities, Inc., SG Cowen Securities Corporation, and BMO Nesbitt Burns Corp., as Initial Purchasers.

26 EX-3.1 3 a89799exv3w1.txt EXHIBIT 3.1 EXHIBIT 3.1 AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF DOLE FOOD COMPANY, INC. FIRST: The name of this Corporation is Dole Food Company, Inc. SECOND: Its registered office in the State of Delaware is to be located at 2711 Centerville Road, Suite 400, in the City of Wilmington, County of New Castle, Zip Code 19808. The registered agent in charge thereof is Corporation Service Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: The total number of shares of stock which this Corporation is authorized to issue is: One Thousand Shares (1,000) with a par value of $.001 per share. FIFTH: The Board of Directors shall have the power to adopt, amend or repeal the bylaws. SIXTH: No director shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty by such director as a director. Notwithstanding the foregoing sentence, a director shall be liable to the extent provided by applicable law, (i) for breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the Delaware General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. No amendment to or repeal of this Article Sixth shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment. EX-3.2 4 a89799exv3w2.txt EXHIBIT 3.2 EXHIBIT 3.2 BY-LAWS OF DOLE FOOD COMPANY, INC., A DELAWARE CORPORATION (EFFECTIVE MARCH 28, 2003) TABLE OF CONTENTS

Page ---- ARTICLE I OFFICES...................................................................... 1 Section 1.01 REGISTERED OFFICE................................................. 1 Section 1.02 PRINCIPAL OFFICE.................................................. 1 Section 1.03 OTHER OFFICES..................................................... 1 ARTICLE II MEETINGS OF STOCKHOLDERS..................................................... 1 Section 2.01 ANNUAL MEETINGS................................................... 1 Section 2.02 SPECIAL MEETINGS.................................................. 1 Section 2.03 PLACE OF MEETINGS................................................. 2 Section 2.04 NOTICE OF MEETINGS................................................ 2 Section 2.05 QUORUM............................................................ 2 Section 2.06 VOTING............................................................ 3 Section 2.07 LIST OF STOCKHOLDERS.............................................. 4 Section 2.08 INSPECTOR OF ELECTION............................................. 4 Section 2.09 STOCKHOLDER ACTION WITHOUT MEETINGS............................... 4 Section 2.10 RECORD DATE....................................................... 4 ARTICLE III BOARD OF DIRECTORS........................................................... 5 Section 3.01 GENERAL POWERS.................................................... 5 Section 3.02 NUMBER AND TERM................................................... 5 Section 3.03 ELECTION OF DIRECTORS............................................. 6 Section 3.04 RESIGNATION AND REMOVAL........................................... 6 Section 3.05 VACANCIES......................................................... 6 Section 3.06 PLACE OF MEETING; TELEPHONE CONFERENCE MEETING.................... 6 Section 3.07 FIRST MEETING..................................................... 6 Section 3.08 REGULAR MEETINGS.................................................. 7 Section 3.09 SPECIAL MEETINGS.................................................. 7 Section 3.10 QUORUM AND ACTION................................................. 7 Section 3.11 ACTION BY CONSENT................................................. 7 Section 3.12 COMPENSATION...................................................... 7 Section 3.13 COMMITTEES........................................................ 8 Section 3.14 OFFICERS OF THE BOARD............................................. 8 ARTICLE IV OFFICERS..................................................................... 8 Section 4.01 OFFICERS.......................................................... 8 Section 4.02 ELECTION AND TERM................................................. 8 Section 4.03 SUBORDINATE OFFICERS.............................................. 9 Section 4.04 REMOVAL AND RESIGNATION........................................... 9 Section 4.05 VACANCIES......................................................... 9 Section 4.06 CHAIRMAN OF THE BOARD............................................. 9 Section 4.07 PRESIDENT......................................................... 9 Section 4.08 VICE PRESIDENT.................................................... 9

By-Law -i- TABLE OF CONTENTS (continued)

Page ---- Section 4.09 SECRETARY......................................................... 10 Section 4.10 TREASURER......................................................... 10 Section 4.11 CONTROLLER........................................................ 10 Section 4.12 COMPENSATION...................................................... 11 ARTICLE V CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC................................ 11 Section 5.01 EXECUTION OF CONTRACTS............................................ 11 Section 5.02 CHECKS, DRAFTS, ETC............................................... 11 Section 5.03 DEPOSIT........................................................... 11 Section 5.04 GENERAL AND SPECIAL BANK ACCOUNTS................................. 11 ARTICLE VI SHARES AND THEIR TRANSFER.................................................... 12 Section 6.01 CERTIFICATES FOR STOCK............................................ 12 Section 6.02 TRANSFER OF STOCK................................................. 12 Section 6.03 REGULATIONS....................................................... 12 Section 6.04 LOST, STOLEN, DESTROYED AND MUTILATED CERTIFICATES................ 12 Section 6.05 REPRESENTATION OF SHARES OF OTHER CORPORATIONS.................... 13 ARTICLE VII INDEMNIFICATION.............................................................. 13 Section 7.01 RIGHT TO INDEMNIFICATION.......................................... 13 Section 7.02 RIGHTS TO ADVANCEMENT OF EXPENSES................................. 13 Section 7.03 RIGHT OF INDEMNITEE TO BRING SUIT................................. 14 Section 7.04 NON-EXCLUSIVITY OF RIGHTS......................................... 14 Section 7.05 INSURANCE......................................................... 15 Section 7.06 INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION........ 15 Section 7.07 NATURE OF RIGHTS.................................................. 15 Section 7.08 CONSTITUENT CORPORATIONS.......................................... 15 Section 7.09 EMPLOYEE BENEFIT PLANS............................................ 15 Section 7.10 RELIANCE.......................................................... 16 Section 7.11 SEVERABILITY...................................................... 16 ARTICLE VIII MISCELLANEOUS................................................................ 16 Section 8.01 SEAL.............................................................. 16 Section 8.02 WAIVER OF NOTICES................................................. 16 Section 8.03 LOANS AND GUARANTIES.............................................. 16 Section 8.04 GENDER............................................................ 17 Section 8.05 AMENDMENTS........................................................ 17

By-Law -ii- BY-LAWS OF DOLE FOOD COMPANY, INC., A DELAWARE CORPORATION (EFFECTIVE MARCH 28, 2003) ARTICLE I OFFICES Section 1.01 REGISTERED OFFICE. The registered office of Dole Food Company, Inc. (hereinafter called the "Corporation") shall be at such place in the State of Delaware as shall be designated by the Board of Directors (hereinafter called the "Board"). Section 1.02 PRINCIPAL OFFICE. The principal office for the transaction of the business of the Corporation shall be at such location, within or without the State of Delaware, as shall be designated by the Board. Section 1.03 OTHER OFFICES. The Corporation may also have an office or offices at such other place or places, either within or without the State of Delaware, as the Board may from time to time determine or as the business of the Corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 2.01 ANNUAL MEETINGS. Annual meetings of the stockholders of the Corporation for the purpose of electing directors and for the transaction of such other proper business as may come before such meetings may be held at such time, date and place as the Board shall determine by resolution. Section 2.02 SPECIAL MEETINGS. Special meetings of the stockholders of the Corporation for any purpose or purposes may be called at any time by the Chairman of the Board, the Chief Executive Officer, the Board, or by a committee of the Board which has been duly designated by the Board and whose powers and authority, as provided in a resolution of the Board or in the By-Laws, include the power to call such meetings, or by one or more stockholders holding shares in the aggregate entitled to cast not less than 20% of the votes at that meeting, but such special meetings may not be called by any other person or persons; provided, however, that if and to the extent that any special meeting of stockholders may be called by any other person or persons specified in any provisions of the Certificate of Incorporation or any amendment thereto or any certificate filed under Section 151(g) of the General Corporation Law of the State of Delaware (or its successor statute as in effect from time to time hereafter), then such 1 special meeting may also be called by the person or persons, in the manner, at the time and for the purposes so specified. Section 2.03 PLACE OF MEETINGS. All meetings of the stockholders shall be held at such places, within or without the State of Delaware, as may from time to time be designated by the person or persons calling the respective meetings and specified in the respective notices or waivers of notice thereof. Section 2.04 NOTICE OF MEETINGS. Except as otherwise required by law, notice of each meeting of the stockholders, whether annual or special, shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder of record entitled to vote at such meeting by delivering a typewritten or printed notice thereof to him personally, or by depositing such notice in the United States mail, in a postage prepaid envelope, directed to him at his address furnished by him to the Secretary of the Corporation for such purpose or, if he shall not have furnished to the Secretary his address for such purpose, then at his address last known to the Secretary, or by transmitting a notice thereof to him at such address by telegraph, cable or wireless. Except as otherwise expressly required by law, no publication of any notice of a meeting of the stockholders shall be required. Every notice of a meeting of the stockholders shall state the place, date and hour of the meeting, and, in the case of a special meeting shall also state the purpose or purposes for which the meeting is called. Except as otherwise expressly required by law, notice of any adjourned meeting of the stockholders need not be given if the time and place thereof are announced at the meeting at which the adjournment is taken. Whenever notice is required to be given to any stockholder to whom (i) notice of two consecutive annual meetings, and all notices of meetings or of the taking of action by written consent without a meeting to such person during the period between such two consecutive annual meetings, or (ii) all, and at least two, payments (if sent by first class mail) of dividends or interest on securities during a twelve month period, have been mailed addressed to such person at his address as shown on the records of the Corporation and have been returned undeliverable, the giving of such notice to such person shall not be required. Any action or meeting which shall have been taken or held without notice to such person shall the same force and effect as if such notice had been duly given. If any such person shall deliver to the Corporation a written notice setting forth his then current address, the requirement that notice be given to such person shall be reinstated. No notice need be given to any person with whom communication is unlawful, nor shall there be any duty to apply for any permanent or license to give notice to any such person. Section 2.05 QUORUM. Except as provided by law, the holders of record of a majority in voting interest of the shares of stock of the Corporation entitled to be voted, present in person or by proxy, shall constitute a quorum for the transaction of business at any meeting of the stockholders of the Corporation or any adjournment thereof. The stockholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal 2 of enough stockholders to leave less than a quorum. In the absence of a quorum at any meeting or any adjournment thereof, a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat or, in the absence therefrom of all the stockholders, any officer entitled to preside at or to act as secretary of such meeting may adjourn such meeting from time to time. At any such adjourned meeting at which a quorum is present any business may be transacted which might have been transacted at the meeting as originally called. Section 2.06 VOTING. (a) At each meeting of the stockholders, each stockholder shall be entitled to vote in person or by proxy each share or fractional share of the stock of the Corporation which has voting rights on the matter in question and which shall have been held by him and registered in his name on the books of the Corporation: (i) on the date fixed pursuant to Section 2.10 of these By-Laws as the record date for the determination of stockholders entitled to notice of and to vote at such meeting, or (ii) if no such record date shall have been so fixed, then (A) at the close of business on the day next preceding the day on which notice of the meeting shall be given or (B) if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held. (b) Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors in such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Persons holding stock of the Corporation in a fiduciary capacity shall be entitled to vote such stock. Persons whose stock is pledged shall be entitled to vote, unless in the transfer by the pledgor on the books of the Corporation he shall have expressly empowered the pledgee to vote thereon, in which case only the pledgee, or his proxy, may represent such stock and vote thereon. Stock having voting power standing of record in the names of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety or otherwise, or with respect to which two or more persons have the same fiduciary relationship, shall be voted in accordance with the provisions of the General Corporation Law of Delaware. (c) Any such voting rights may be exercised by the stockholder entitled thereto in person or by his proxy appointed by an instrument in writing, subscribed by such stockholder or by his attorney thereunto authorized and delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date unless said proxy shall provide for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he shall in writing so notify the secretary of the meeting prior to the voting of the proxy. At any meeting of the stockholders all matters, except as otherwise provided in the Certificate of Incorporation, in these By-Laws or by law, shall be decided by the vote of a majority in voting interest 3 of the stockholders present in person or by proxy and entitled to vote thereat and thereon. The stockholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. The vote at any meeting of the stockholders on any question need not be by ballot, unless so directed by the chairman of the meeting. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his proxy if there be such proxy, and it shall state the number of shares voted. Section 2.07 LIST OF STOCKHOLDERS. The Secretary of the Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the entire duration thereof, and may be inspected by any stockholder who is present. Section 2.08 INSPECTOR OF ELECTION. If at any meeting of the stockholders a vote by written ballot shall be taken on any question, the chairman of such meeting may appoint an inspector or inspectors of election to act with respect to such vote. Each inspector so appointed shall first subscribe an oath faithfully to execute the duties of an inspector at such meeting with strict impartiality and according to the best of his ability. Such inspectors shall decide upon the qualification of the voters and shall report the number of shares represented at the meeting and entitled to vote on such question, shall conduct and accept the votes, and, when the voting is completed, shall ascertain and report the number of shares voted respectively for and against the question. Reports of the inspectors shall be in writing and subscribed and delivered by them to the Secretary of the Corporation. Inspectors need not be stockholders of the Corporation, and any officer of the Corporation may be an inspector on any question other than a vote for or against a proposal in which he shall have a material interest. Section 2.09 STOCKHOLDER ACTION WITHOUT MEETINGS. Any action required by the General Corporation Law of the State of Delaware to be taken at any annual or special meeting of the stockholders, or any action which may be taken at any annual or special meeting of the stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing setting forth the action so taken shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Section 2.10 RECORD DATE. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a 4 meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board and which record date: (i) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty nor less than ten days before the date of such meeting; (ii) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten days from the date upon which the resolution fixing the record date is adopted by the Board; and (iii) in the case of any other action, shall not be more than sixty days prior to such other action. If no record date is fixed: (i) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (ii) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting when no prior action of the Board is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, or, if prior action by the Board is required by law, shall be at the close of business on the day on which the Board adopts the resolution taking such prior action; and (iii) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting. ARTICLE III BOARD OF DIRECTORS Section 3.01 GENERAL POWERS. The property, business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all of the powers of the Corporation, except such as are by the Certificate of Incorporation, by these By-Laws or by law conferred upon or reserved to the stockholders. Section 3.02 NUMBER AND TERM. The authorized number of directors of the Corporation shall be fixed from time to time exclusively by the Board of Directors pursuant to a resolution adopted by a majority of the Whole Board. Directors shall be elected for a term of office to expire at the next annual meeting of stockholders after their election, with each director to hold office until his or her successor shall have been duly elected and qualified. Directors need not be stockholders of the Corporation. For purposes of these By-Laws, the term "Whole Board" means the then-total number of authorized directors (including any vacancies in authorized directorships, regardless of whether any such vacancy resulted from the creation of a new authorized directorship or instead from the death, resignation, retirement, disqualification, or removal from office of a director). 5 Section 3.03 ELECTION OF DIRECTORS. The directors shall be elected by the stockholders of the Corporation, and at each election the persons receiving the greatest number of votes, up to the number of directors then to be elected, shall be the persons then elected. The election of directors is subject to any provisions contained in the Certificate of Incorporation relating thereto, including any provisions for a classified board. Section 3.04 RESIGNATION AND REMOVAL. Any director of the Corporation may resign at any time by giving written notice to the Board or to the Secretary of the Corporation. Any such resignation shall take effect at the time specified therein, or, if the time is not specified, it shall take effect immediately upon its receipt; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Except as otherwise provided by the Certificate of Incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares then entitled to vote at an election of directors. Section 3.05 VACANCIES. Except as otherwise provided in the Certificate of Incorporation, any vacancy in the Board, whether because of death, resignation, disqualification, an increase in the number of directors, or any other cause, may be filled by vote of the majority of the remaining directors, although less than a quorum, or by a sole remaining director. Each director so chosen to fill a vacancy shall hold office until his successor shall have been elected and shall qualify or until he shall resign or shall have been removed. No reduction of the authorized number of directors shall have the effect of removing any director prior to the expiration of his term of office. Upon the resignation of one or more directors from the Board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided hereinabove in the filling of other vacancies. Section 3.06 PLACE OF MEETING; TELEPHONE CONFERENCE MEETING. The Board may hold any of its meetings at such place or places within or without the State of Delaware as the Board may from time to time by resolution designate or as shall be designated by the person or persons calling the meeting or in the notice or waiver of notice of any such meeting. Directors may participate in any regular or special meeting of the Board by means of conference telephone or similar communications equipment pursuant to which all persons participating in the meeting of the Board can hear each other, and such participation shall constitute presence in person at such meeting. Section 3.07 FIRST MEETING. The Board shall meet as soon as practicable after each annual election of directors and notice of such first meeting shall not be required. 6 Section 3.08 REGULAR MEETINGS. Regular meetings of the Board may be held at such times as the Board shall from time to time by resolution determine. If any day fixed for a meeting shall be a legal holiday at the place where the meeting is to be held, then the meeting shall be held at the same hour and place on the next succeeding business day which is not a legal holiday. Except as provided by law, notice of regular meetings need not be given. Section 3.09 SPECIAL MEETINGS. Special meetings of the Board may be called at any time by the Chairman of the Board or the President or by any two (2) directors, to be held at the principal office of the Corporation, or at such other place or places, within or without the State of Delaware, as the person or persons calling the meeting may designate. Notice of the time and place of special meetings shall be given to each director either (i) by mailing or otherwise sending to him a written notice of such meeting, charges prepaid, addressed to him at his address as it is shown upon the records of the Corporation, or if it is not so shown on such records or is not readily ascertainable, at the place in which the meetings of the directors are regularly held, at least seventy-two (72) hours prior to the time of the holding of such meeting; or (ii) by orally communicating the time and place of the special meeting to him at least forty-eight (48) hours prior to the time of the holding of such meeting. Either of the notices as above provided shall be due, legal and personal notice to such director. Section 3.10 QUORUM AND ACTION. Except as otherwise provided in these By-Laws or by law, the presence of a majority of the authorized number of directors shall be required to constitute a quorum for the transaction of business at any meeting of the Board, and all matters shall be decided at any such meeting, a quorum being present, by the affirmative votes of a majority of the directors present. In the absence of a quorum, a majority of directors present at any meeting may adjourn the same from time to time until a quorum shall be present. Notice of any adjourned meeting need not be given. The directors shall act only as a Board, and the individual directors shall have no power as such. Section 3.11 ACTION BY CONSENT. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or such committee. Such action by written consent shall have the same force and effect as the unanimous vote of such directors. Section 3.12 COMPENSATION. No stated salary need be paid to directors, as such, for their services but, as fixed from time to time by resolution of the Board, the directors may receive directors' fees, compensation and reimbursement for expenses for attendance at directors' meetings, for serving on committees and for discharging their duties; provided that nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. 7 Section 3.13 COMMITTEES. The Board may, by resolution passed by a majority of the Whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to the following: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by Title 8, Chapter 1 of the Delaware Code to be submitted to stockholders for approval, or (ii) adopting, amending or repealing any By-Law of the Corporation. Unless the Board otherwise provides, each committee designated by the Board may make, alter and repeal rules for conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board conducts its business pursuant to these By-Laws. Any such committee shall keep written minutes of its meetings and report the same to the Board when required. Section 3.14 OFFICERS OF THE BOARD. A Chairman of the Board or a Vice Chairman may be appointed from time to time by the Board and shall have such powers and duties as shall be designated by the Board. ARTICLE IV OFFICERS Section 4.01 OFFICERS. The officers of the Corporation shall be a President, a Secretary and a Treasurer. The Corporation may also have, at the discretion of the Board, a Chairman of the Board, a Chief Executive Officer, one or more Vice Presidents, one or more Assistant Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, a Controller and such other officers as may be appointed in accordance with the provisions of Section 4.03 of these By-Laws. Any number of offices may be held by the same person. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officers or agents, notwithstanding any provision hereof. The salaries of all officers of the Corporation shall be fixed from time to time by the Board. Section 4.02 ELECTION AND TERM. The officers of the Corporation, except such officers as may be appointed in accordance with the provisions of Section 4.03 or Section 4.05 of these By-Laws, shall be chosen annually by the Board, and each shall hold his office until he shall resign or shall be removed or otherwise disqualified to serve, or until his successor shall be elected and qualified. 8 Section 4.03 SUBORDINATE OFFICERS. The Board may appoint, or may authorize the President or Chief Executive Officer, if any, to appoint, such other officers as the business of the Corporation may require, each of whom shall have such authority and perform such duties as are provided in these By-Laws or as the Board, the President or the Chief Executive Officer, if any, from time to time may specify, and shall hold office until he shall resign or shall be removed or otherwise disqualified to serve. Section 4.04 REMOVAL AND RESIGNATION. Any officer may be removed, with or without cause, by a majority of the directors at the time in office, at any regular or special meeting of the Board, or, except in case of an officer chosen by the Board, by the President or Chief Executive Officer, if any, upon whom such power of removal may be conferred by the Board. Any officer may resign at any time by giving written notice to the Board, the Chairman of the Board, the President, the Chief Executive Officer or the Secretary of the Corporation. Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 4.05 VACANCIES. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in the By-Laws for the regular appointments to such office. Section 4.06 CHAIRMAN OF THE BOARD. The Chairman of the Board shall be the chief executive officer of the Corporation. Subject to the provisions of these By-Laws and to the direction of the Board of Directors, he or she shall have the responsibility for the general management and control of the business and affairs of the Corporation and shall perform all duties and have all powers which are commonly incident to the office of chief executive or which are delegated to him or her by the Board of Directors. He or she shall have power to sign all stock certificates, contracts and other instruments of the Corporation that are authorized and shall have general supervision and direction of all of the other officers, employees and agents of the Corporation. Section 4.07 PRESIDENT. The President shall be the chief operating officer of the Corporation. He or she shall have general responsibility for the management and control of the operations of the Corporation and shall perform all duties and have all powers which are commonly incident to the office of chief operating officer or which are delegated to him or her by the Board of Directors. Subject to the direction of the Board of Directors and the Chairman of the Board, the President shall have power to sign all stock certificates, contracts and other instruments of the Corporation that are authorized and shall have general supervision of all of the other officers (other than the Chairman of the Board and officers who report directly to the Chairman of the Board), employees and agents of the Corporation. Section 4.08 VICE PRESIDENT. The Vice President(s), if any, shall exercise and perform such powers and duties with respect to the administration of the business and affairs of the Corporation as from time to time may be assigned to each of them by the President, by the Chief Executive Officer, if any, by the Chairman of the 9 Board, if any, by the Board or as is prescribed by the By-Laws. In the absence or disability of the President and Chief Executive Officer, if any, the Vice Presidents, in order of their rank as fixed by the Board, or if not ranked, the Vice President designated by the Board, shall perform all of the duties of the President and when so acting shall have all of the powers of and be subject to all the restrictions upon the President. Section 4.09 SECRETARY. The Corporate Secretary shall keep, or cause to be kept, a book of minutes at the principal office for the transaction of the business of the Corporation, or such other place as the Board may order, of all meetings of directors and stockholders, with the time and place of holding, whether regular or special, and if special, how authorized and the notice thereof given, the names of those present at directors' meetings, the number of shares present or represented at stockholders' meetings and the proceedings thereof. The Corporate Secretary shall keep, or cause to be kept, at the principal office for the transaction of the business of the Corporation or at the office of the Corporation's transfer agent, a share register, or a duplicate share register, showing the names of the stockholders and their addresses, the number and classes of shares held by each, the number and date of certificates issued for the same, and the number and date of cancellation of every certificate surrendered for cancellation. The Corporate Secretary shall give, or cause to be given, notice of all the meetings of the stockholders and of the Board required by these By-Laws or by law to be given, and he shall keep the seal of the Corporation in safe custody, and shall have such other powers and perform such other duties as may be prescribed by the Board or these By-Laws. If for any reason the Corporate Secretary shall fail to give notice of any special meeting of the Board called by one or more of the persons identified in Section 3.09 of these By-Laws, or if he shall fail to give notice of any special meeting of the stockholders called by one or more of the persons identified in Section 2.02 of these By-Laws, then any such person or persons may give notice of any such special meeting. Section 4.10 TREASURER. Except insofar as some other officer or employee shall from time to time be expressly authorized and instructed so to do, the Treasurer shall receive and provide receipt for, either personally or by an employee authorized by the Treasurer so to do, all checks and drafts of the Corporation, pay all debts of the Corporation under direction of the Board of Directors, keep safely all notes, stocks, bonds, deeds and all evidences of property belonging to the Corporation, have custody of all moneys either belonging to the Corporation, or in its charge, and properly care for the same and shall have such other powers and duties as the Board of Directors may from time to time prescribe. Section 4.11 CONTROLLER. The Controller shall be the principal accounting officer of the Corporation. Except insofar as some other officer or employee shall from time to time be expressly authorized so to do, the Controller shall keep all financial books of the Corporation, keep thorough and proper accounts of the financial transactions of the Corporation and render statements of the same in such form and at such times as the Board of Directors shall require, maintain a system of budgeting control, prepare and render to such governmental officials having the right to so require, tax returns 10 and all exhibits, reports and other instruments required by law and have such other powers or duties as may be assigned to him from time to time by the Board of Directors. Section 4.12 COMPENSATION. The compensation of the officers of the Corporation, if any, shall be fixed from time to time by the Board. ARTICLE V CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC. Section 5.01 EXECUTION OF CONTRACTS. The Board, except as otherwise provided in these By-Laws, may authorize any officer or officers, agent or agents, to enter into any contract or execute any instrument in the name and on behalf of the Corporation, and such authority may be general or confined to specific instances; and unless so authorized by the Board or by these By-Laws, no officer, agent or employee shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or in any amount. Section 5.02 CHECKS, DRAFTS, ETC. All checks, drafts or other orders for payment of money, notes or other evidence of indebtedness, issued in the name of or payable to the Corporation, shall be signed or endorsed by such person or persons and in such manner as, from time to time, shall be determined by resolution of the Board. Each such person shall give such bond, if any, as the Board may require. Section 5.03 DEPOSIT. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositories as the Board may select, or as may be selected by any officer or officers, assistant or assistants, agent or agents, attorney or attorneys, of the Corporation to whom such power shall have been delegated by the Board. For the purpose of deposit and for the purpose of collection for the account of the Corporation, the President, the Chief Executive Officer, any Vice President or the Treasurer (or any other officer or officers, assistant or assistants, agent or agents, or attorney or attorneys of the Corporation who shall be determined by the Board from time to time) may endorse, assign and deliver checks, drafts and other orders for the payment of money which are payable to the order of the Corporation. Section 5.04 GENERAL AND SPECIAL BANK ACCOUNTS. The Board from time to time may authorize the opening and keeping of general and special bank accounts with such banks, trust companies or other depositories as the Board may select or as may be selected by an officer or officers, assistant or assistants, agent or agents, or attorney or attorneys of the Corporation to whom such power shall have been delegated by the Board. The Board may make such special rules and regulations with respect to such bank accounts, not inconsistent with the provisions of these By-Laws, as it may deem expedient. 11 ARTICLE VI SHARES AND THEIR TRANSFER Section 6.01 CERTIFICATES FOR STOCK. Every owner of stock of the Corporation shall be entitled to have a certificate or certificates, in such form as the Board shall prescribe, certifying the number and class of shares of the stock of the Corporation owned by him. The certificates representing shares of such stock shall be numbered in the order in which they shall be issued and shall be signed in the name of the Corporation by the Chairman of the Board, the President or a Vice President and by the Secretary or an Assistant Secretary or by the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificates may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon any such certificate shall thereafter have ceased to be such officer, transfer agent or registrar before such certificate is issued, such certificate may nevertheless be issued by the Corporation with the same effect as though the person who signed such certificate, or whose facsimile signature shall have been placed thereupon, were such officer, transfer agent or registrar at the date of issue. A record shall be kept of the respective names of the persons, firms or corporations owning the stock represented by such certificates, the number and class of shares represented by such certificates, respectively, and the respective dates thereof, and in case of cancellation, the respective dates of cancellation. Every certificate surrendered to the Corporation for exchange or transfer shall be cancelled, and no new certificate or certificates shall be issued in exchange for any existing certificate until such existing certificate shall have been so cancelled, except in cases provided for in Section 6.04 of these By-Laws. Section 6.02 TRANSFER OF STOCK. Transfer of shares of stock of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary, or with a transfer clerk or a transfer agent appointed as provided in Section 6.03 of these By-Laws, and upon surrender of the certificate or certificates for such shares properly endorsed and the payment of all taxes thereon. The person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation. Whenever any transfer of shares shall be made for collateral security, and not absolutely, such fact shall be stated expressly in the entry of transfer if, when the certificate or certificates shall be presented to the Corporation for transfer, both the transferor and the transferee request the Corporation to do so. Section 6.03 REGULATIONS. The Board may make such rules and regulations as it may deem expedient, not inconsistent with these By-Laws, concerning the issue, transfer and registration of certificates for shares of the stock of the Corporation. The Board may appoint, or authorize any officer or officers to appoint, one or more transfer clerks or one or more transfer agents and one or more registrars, and may require all certificates for stock to bear the signature or signatures of any of them. Section 6.04 LOST, STOLEN, DESTROYED AND MUTILATED CERTIFICATES. In any case of loss, theft, destruction, or mutilation of any certificate 12 of stock, another may be issued in its place upon proof of such loss, theft, destruction, or mutilation and upon the giving of a bond of indemnity to the Corporation in such form and in such sums as the Board may direct; provided, however, that a new certificate may be issued without requiring any bond when, in the judgment of the Board, it is proper to do so. Section 6.05 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The President or any Vice President and the Secretary or any Assistant Secretary of this Corporation are authorized to vote, represent and exercise on behalf of this Corporation all rights incident to all shares of any other corporation or corporations standing in the name of this Corporation. The authority herein granted to said officers to vote or represent on behalf of this Corporation any and all shares held by this Corporation in any other corporation or corporations may be exercised either by such officers in person or by any person authorized so to do by proxy or power of attorney duly executed by said officers. ARTICLE VII INDEMNIFICATION Section 7.01 RIGHT TO INDEMNIFICATION. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she is or was a director or an officer of the Corporation or is or was serving at the request of the Corporation as a director, officer or trustee of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an "indemnitee"), whether the basis of such proceeding is alleged action in an official capacity as a director, officer or trustee or in any other capacity while serving as a director, officer or trustee, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith; provided, however, that, except as provided in Section 7.03 of these By-Laws with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. Section 7.02 RIGHT TO ADVANCEMENT OF EXPENSES. In addition to the right to indemnification conferred in Section 7.01 of these By-Laws, an indemnitee shall also have the right to be paid by the Corporation the expenses (including attorney's fees) incurred in defending any such proceeding in advance of its final disposition (hereinafter an "advancement of expenses"); provided, however, that, if the Delaware General Corporation Law requires, an advancement of expenses incurred by an indemnitee 13 in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a "final adjudication") that such indemnitee is not entitled to be indemnified for such expenses under this Section 7.02 or otherwise. Section 7.03 RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section 7.01 or 7.02 of these By-Laws is not paid in full by the Corporation within sixty (60) days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty (20) days, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (i) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) in any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any applicable standard for indemnification set forth in the Delaware General Corporation Law. Neither the failure of the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article VII or otherwise shall be on the Corporation. Section 7.04 NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and to the advancement of expenses conferred in this Article VII shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Corporation's Certificate of Incorporation, By-Laws, agreement, vote of stockholders or directors or otherwise. 14 Section 7.05 INSURANCE. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law. Section 7.06 INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION. The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article VII with respect to the indemnification and advancement of expenses of directors and officers of the Corporation. Section 7.07 NATURE OF RIGHTS. The rights conferred upon indemnitees in this Article VII shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer or trustee and shall inure to the benefit of the indemnitee's heirs, executors and administrators. Any amendment, alteration or repeal of this Article VII that adversely affects any right of an indemnitee or its successors shall be prospective only and shall not limit or eliminate any such right with respect to any proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place prior to such amendment or repeal. Section 7.08 CONSTITUENT CORPORATIONS. For the purposes of this Article VII, references to "the Corporation" include in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise or as a member of any committee or similar body shall stand in the same position under the provisions of this Article VII with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. Section 7.09 EMPLOYEE BENEFIT PLANS. For the purposes of this Article VII, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the Corporation" shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation" as referred to in this Article VII. 15 Section 7.10 RELIANCE. Each director, each member of any committee designated by the Board of Directors, and each officer of the Corporation shall, in the performance of his or her duties, be fully protected in relying in good faith upon the books of account or other records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its officers or employees, or committees of the Board of Directors so designated, or by any other person as to matters that such director or committee member reasonably believes are within such other person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation. Section 7.11 SEVERABILITY. If any part of this Article VII shall be found, in any action, suit or proceeding or appeal therefrom or in any other circumstances or as to any particular officer, director, employee or agent to be unenforceable, ineffective or invalid for any reason, the enforceability, effect and validity of the remaining parts or of such parts in other circumstances shall not be affected, except as otherwise required by applicable law. ARTICLE VIII MISCELLANEOUS Section 8.01 SEAL. The Board shall provide a corporate seal, which shall be in the form of a circle and shall bear the name of the Corporation and words and figures showing that the Corporation was incorporated in the State of Delaware and showing the year of incorporation. Section 8.02 WAIVER OF NOTICES. Whenever notice is required to be given under any provision of these By-Laws, the Certificate of Incorporation or by law, a written waiver, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when a person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in any written waiver of notice unless required by the Certificate of Incorporation. Section 8.03 LOANS AND GUARANTIES. The Corporation may lend money to, or guarantee any obligation of, and otherwise assist any officer or other employee of the Corporation or of its subsidiaries, including any officer who is a director, whenever, in the judgment of the Board, such loan, guaranty or assistance may reasonably be expected to benefit the Corporation. The loan, guaranty, or other assistance may be with or without interest, and may be unsecured or secured in such manner as the Board shall approve, including, without limitation, a pledge of shares of stock of the Corporation. 16 Section 8.04 GENDER. All personal pronouns used in these By-Laws shall include the other genders, whether used in the masculine, feminine or neuter gender, and the singular shall include the plural, and vice versa, whenever and as often as may be appropriate. Section 8.05 AMENDMENTS. These By-Laws, or any of them, may be rescinded, altered, amended or repealed, and new By-Laws may be made (i) by the Board, by vote of a majority of the number of directors then in office as directors, acting at any meeting of the Board or (ii) by the stockholders, by the vote of a majority of the outstanding shares of voting stock of the Corporation, at any meeting of stockholders; provided, however, that Section 2.02 of these By-Laws can only be amended if that Section as amended would not conflict with the Corporation's Certificate of Incorporation. Any By-Law made or altered by the stockholders may be altered or repealed by the Board or may be altered or repealed by the stockholders. 17 EX-4.1 5 a89799exv4w1.txt EXHIBIT 4.1 EXHIBIT 4.1 ================================================================================ CREDIT AGREEMENT among DHM HOLDING COMPANY, INC., DOLE FOOD COMPANY, INC., SOLVEST, LTD., VARIOUS LENDING INSTITUTIONS, DEUTSCHE BANK AG NEW YORK BRANCH, as Administrative Agent, THE BANK OF NOVA SCOTIA, and BANC OF AMERICA SECURITIES LLC, as Co-Syndication Agents, and FLEET NATIONAL BANK and SOCIETE GENERALE, as Co-Documentation Agents Dated as of March 28, 2003 -------------------------------- DEUTSCHE BANK SECURITIES INC., THE BANK OF NOVA SCOTIA and BANC OF AMERICA SECURITIES LLC, as Joint Lead Arrangers and Book Runners ================================================================================ Table of Contents

Page ---- SECTION 1. Amount and Terms of Credit................................................. 1 1.01 Commitments.................................................................. 1 1.01 Minimum Borrowing Amounts, etc............................................... 9 1.02 Notice of Borrowing.......................................................... 9 1.03 Disbursement of Funds........................................................ 10 1.04 Notes........................................................................ 11 1.05 Conversions.................................................................. 15 1.06 Pro Rata Borrowings.......................................................... 16 1.07 Interest..................................................................... 16 1.08 Interest Periods............................................................. 18 1.09 Increased Costs; Illegality; etc............................................. 19 1.10 Compensation................................................................. 22 1.11 Change of Lending Office..................................................... 23 1.12 Replacement of Lenders....................................................... 24 1.13 Special Provisions Applicable to Lenders Upon the Occurrence of a Sharing Event.............................................................. 26 SECTION 2. 32 SECTION 2A. Letters of Credit........................................................... 32 2A.01 Letters of Credit............................................................ 32 2A.02 Minimum Stated Amount........................................................ 34 2A.03 Letter of Credit Requests.................................................... 34 2A.04 Letter of Credit Participations.............................................. 35 2A.05 Agreement to Repay Letter of Credit Drawings................................. 38 2A.06 Increased Costs.............................................................. 40 SECTION 2B. Bank Guaranties............................................................. 41 2B.01 Bank Guaranties.............................................................. 41 2B.02 Minimum Face Amount.......................................................... 43 2B.03 Bank Guaranty Requests....................................................... 43 2B.04 Bank Guaranty Participations................................................. 43 2B.05 Agreement to Repay Bank Guaranty Payments.................................... 47 2B.06 Increased Costs.............................................................. 48 2B.07 Cash Collateralization....................................................... 49 SECTION 3. Fees; Commitments............................................................ 49 3.01 Fees......................................................................... 49 3.02 Voluntary Termination or Reduction of Revolving Loan Commitments and Adjustments of Multicurrency Facility Revolving Loan Commitments.......................................... 53 3.03 Mandatory Reduction of Commitments........................................... 54

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Page ---- SECTION 4. Prepayments; Repayments; Taxes............................................. 55 4.01 Voluntary Prepayments........................................................ 55 4.02 Mandatory Repayments and Commitment Reductions............................... 57 4.03 Method and Place of Payment.................................................. 65 4.04 Net Payments................................................................. 66 SECTION 5. Conditions Precedent to Credit Events on the Initial Borrowing Date........ 68 5.01 Execution of Agreement; Notes................................................ 68 5.02 Officer's Certificate........................................................ 68 5.03 Opinions of Counsel.......................................................... 68 5.04 Company Documents; Proceedings............................................... 69 5.05 Adverse Change, etc.......................................................... 70 5.06 Litigation................................................................... 70 5.07 Approvals.................................................................... 70 5.08 Consummation of the Acquisition, etc......................................... 70 5.09 Common Equity Financing; etc................................................. 71 5.10 Amendments to Existing Senior Notes Documents, etc........................... 72 5.11 Initial Refinancing.......................................................... 72 5.12 Aggregate Funds Needed to Effect Transaction................................. 73 5.13 Outstanding Indebtedness and Preferred Equity................................ 74 5.14 Subsidiaries Guaranties; Intercompany Subordination Agreement; Capital Call Agreement....................................................... 74 5.15 Pledge Agreements............................................................ 75 5.16 U.S. Security Agreement...................................................... 76 5.17 Foreign Security Agreements.................................................. 77 5.18 Mortgages; Title Insurance; Surveys; etc..................................... 78 5.19 Employee Benefit Plans; Shareholders' Agreements; Management Agreements; Collective Bargaining Agreements; Existing Indebtedness Agreements; Tax Allocation Agreements.................. 79 5.20 Solvency Certificate; Solvency Opinion; Insurance Certificates; etc.......... 80 5.21 Financial Statements; Pro Forma Financial Statements; Projections............ 81 5.22 Payment of Fees.............................................................. 81 5.23 Consent Letter............................................................... 81 SECTION 6. ........................................................................... 82 6A.01 Limitation on Cash on Hand..................................................... 82 6B.01 No Default; Representations and Warranties..................................... 82 SECTION 7. Representations and Warranties............................................. 83 7.01 Company Status............................................................... 83 7.02 Company Power and Authority.................................................. 83 7.03 No Violation................................................................. 84 7.04 Litigation................................................................... 84 7.05 Use of Proceeds; Margin Regulations.......................................... 84 7.06 Governmental Approvals....................................................... 85

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Page ---- 7.07 Investment Company Act....................................................... 85 7.08 Public Utility Holding Company Act........................................... 85 7.09 True and Complete Disclosure................................................. 86 7.10 Financial Condition; Financial Statements.................................... 86 7.11 Security Interests........................................................... 87 7.12 Compliance with ERISA........................................................ 88 7.13 Capitalization............................................................... 89 7.14 Subsidiaries................................................................. 90 7.15 Intellectual Property, etc................................................... 90 7.16 Compliance with Statutes; Agreements, etc.................................... 90 7.17 Environmental Matters........................................................ 90 7.18 Properties................................................................... 91 7.19 Labor Relations.............................................................. 92 7.20 Tax Returns and Payments..................................................... 92 7.21 Scheduled Existing Indebtedness.............................................. 92 7.22 Insurance.................................................................... 93 7.23 Representations and Warranties in Other Documents............................ 93 7.24 Transaction.................................................................. 93 7.25 Special Purpose Corporations................................................. 93 7.26 Subordination................................................................ 94 SECTION 8. Affirmative Covenants...................................................... 94 8.01 Information Covenants........................................................ 94 8.02 Books, Records and Inspections............................................... 100 8.03 Insurance.................................................................... 100 8.04 Payment of Taxes............................................................. 101 8.05 Existence; Franchises........................................................ 101 8.06 Compliance with Statutes; etc................................................ 101 8.07 Compliance with Environmental Laws........................................... 101 8.08 ERISA........................................................................ 102 8.09 Good Repair.................................................................. 104 8.10 End of Fiscal Years; Fiscal Quarters......................................... 104 8.11 Additional Security. Additional Guaranties; Actions with Respect to Non-Guarantor Subsidiaries; Further Assurances............................ 104 8.12 Foreign Subsidiaries Security................................................ 108 8.13 Use of Proceeds.............................................................. 109 8.14 Ownership of Subsidiaries.................................................... 110 8.15 Permitted Acquisitions....................................................... 110 8.16 Maintenance of Company Separateness.......................................... 112 8.17 Foreign Exchange Protection.................................................. 112 8.18 Performance of Obligations................................................... 113 8.19 Conduct of Business.......................................................... 113 8.20 Contributions; Payments...................................................... 114 8.21 Post-Closing Refinancing..................................................... 114 8.22 Asset Sale Requirements...................................................... 115 8.23 Margin Stock................................................................. 115 8.24 Special Provisions Regarding Special Colombian Put Notes..................... 116

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Page ---- SECTION 9. Negative Covenants......................................................... 116 9.01 Changes in Business; etc..................................................... 116 9.02 Consolidation; Merger; Sale or Purchase of Assets; etc....................... 119 9.03 Liens........................................................................ 123 9.04 Indebtedness................................................................. 126 9.05 Advances; Investments; Loans................................................. 129 9.06 Restricted Payments; etc..................................................... 134 9.07 Transactions with Affiliates................................................. 135 9.08 Consolidated Interest Coverage Ratio......................................... 136 9.09 Consolidated Fixed Charge Coverage Ratio..................................... 136 9.10 Leverage Ratio............................................................... 137 9.11 Minimum Consolidated EBITDA.................................................. 138 9.12 Capital Expenditures......................................................... 139 9.13 Bank Debt Leverage Ratio..................................................... 140 9.14 Limitation on Voluntary Payments and Modifications of Indebtedness; Modifications of Certificate of Incorporation, By- Laws and Certain Other Agreements; Issuances of Capital Stock; etc.......................................................................... 141 9.15 Limitation on Issuance of Equity Interests................................... 142 9.16 Limitation on Certain Restrictions on Subsidiaries........................... 143 9.17 Limitation on the Creation of Subsidiaries and Joint Ventures................ 144 9.18 Special Restrictions Relating to Principal Property.......................... 145 SECTION 10. Events of Default.......................................................... 145 10.01 Payments..................................................................... 145 10.02 Representations, etc......................................................... 145 10.03 Covenants.................................................................... 145 10.04 Default Under Other Agreements............................................... 146 10.05 Bankruptcy, etc.............................................................. 146 10.06 ERISA........................................................................ 146 10.07 Security Documents........................................................... 147 10.08 Guaranties................................................................... 147 10.09 Judgments.................................................................... 148 10.10 Ownership.................................................................... 148 10.11 Capital Call Agreement....................................................... 148 10.12 Denial of Liability.......................................................... 148 10.13 Governmental Action.......................................................... 149 10.14 Special Defaults Relating to Bermuda Entities................................ 149 SECTION 11. Definitions................................................................ 150 SECTION 12. The Agents................................................................. 207 12.01 Appointment.................................................................. 207 12.02 Nature of Duties............................................................. 208 12.03 Certain Rights of the Agents................................................. 209 12.04 Reliance by Agents........................................................... 209 12.05 Notice of Default, etc....................................................... 209

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Page ---- 12.06 Nonreliance on Agents and Other Lenders...................................... 210 12.07 Indemnification.............................................................. 210 12.08 Agents in their Individual Capacities........................................ 211 12.09 Holders...................................................................... 211 12.10 Resignation of the Agents.................................................... 211 12.11 Collateral Matters........................................................... 212 12.12 Delivery of Information...................................................... 213 12.13 Special Appointment of Collateral Agent...................................... 213 12.14 Special Provisions Relating to Canadian Security Documents................... 214 SECTION 13. Miscellaneous.............................................................. 215 13.01 Payment of Expenses, etc..................................................... 215 13.02 Right of Setoff.............................................................. 216 13.03 Notices...................................................................... 217 13.04 Benefit of Agreement......................................................... 218 13.05 No Waiver; Remedies Cumulative............................................... 220 13.06 Payments Pro Rata............................................................ 221 13.07 Calculations; Computations................................................... 221 13.08 Governing Law; Submission to Jurisdiction; Venue............................. 222 13.09 Counterparts................................................................. 223 13.10 Effectiveness................................................................ 223 13.11 Headings Descriptive......................................................... 223 13.12 Amendment or Waiver; etc..................................................... 223 13.13 Survival..................................................................... 226 13.14 Domicile of Loans and Commitments............................................ 226 13.15 Confidentiality.............................................................. 226 13.16 Waiver of Jury Trial......................................................... 227 13.17 Register..................................................................... 227 13.18 English Language............................................................. 228 13.19 Post Closing Actions......................................................... 228 13.20 Special Provisions Regarding Pledges of Equity Interests in, and Promissory Notes Owed by, Persons Not Organized in Qualified Jurisdictions................................................................ 229 13.21 Powers of Attorney; etc...................................................... 230 13.22 Waiver of Sovereign Immunity................................................. 230 13.23 Judgment Currency............................................................ 231 13.24 Special Acknowledgments...................................................... 231 SECTION 14. Holdings Guaranty.......................................................... 232 14.01 The Guaranty................................................................. 232 14.02 Bankruptcy................................................................... 232 14.03 Nature of Liability.......................................................... 232 14.04 Independent Obligation....................................................... 233 14.05 Authorization................................................................ 233 14.06 Reliance..................................................................... 234 14.07 Subordination................................................................ 234 14.08 Waiver....................................................................... 235

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Page ---- 14.09 Payments..................................................................... 236 SECTION 15. U.S. Borrower's Guaranty................................................... 237 15.01 The U.S. Borrower's Guaranty................................................. 237 15.02 Bankruptcy................................................................... 237 15.03 Nature of Liability.......................................................... 237 15.04 Independent Obligation....................................................... 238 15.05 Authorization................................................................ 238 15.06 Reliance..................................................................... 239 15.07 Subordination................................................................ 239 15.08 Waiver....................................................................... 240 15.09 Payments..................................................................... 242

SCHEDULE I List of Lenders and Commitments SCHEDULE II Lender Addresses SCHEDULE III Real Properties SCHEDULE IV Scheduled 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; Existing Bank Guaranties SCHEDULE XII Group Structure Chart SCHEDULE XIII Certain Security Documents, etc. SCHEDULE XIV Post-Closing Matters SCHEDULE XV Non-Guarantor Subsidiaries; Excluded Foreign Subsidiaries SCHEDULE XVI Transactions with Affiliates SCHEDULE XVII Principal Properties SCHEDULE XVIII Tax Matters SCHEDULE XIX Governmental Approvals SCHEDULE XX Initial Qualified Jurisdictions EXHIBIT A-1 - Form of Notice of Borrowing EXHIBIT A-2 - Notice of Conversion/Continuation EXHIBIT B-1 - Form of Tranche A Term Note EXHIBIT B-2 - Form of Tranche B Term Note EXHIBIT B-3 - Form of Multicurrency Facility Revolving Note EXHIBIT B-4 - Form of U.S. Borrower Dollar Facility Revolving Note EXHIBIT B-5 - Form of Bermuda Borrower Dollar Facility Revolving Note EXHIBIT B-6 - Form of Multicurrency Facility Swingline Note EXHIBIT B-7 - Form of U.S. Borrower Dollar Facility Swingline Note EXHIBIT B-8 - Form of Bermuda Borrower Dollar Facility Swingline Note EXHIBIT C-1 - Form of Letter of Credit Request -vi- EXHIBIT C-2 - Form of Bank Guaranty Request EXHIBIT D - Form of Section 4.04(b)(ii) Certificate EXHIBIT E-1 - Form of Opinion of Paul, Hastings, Janofsky & Walker LLP EXHIBIT E-2 - Form of Opinion of Appleby, Spurling & Kempe EXHIBIT F - Form of Officers' Certificate EXHIBIT G-1 - Form of U.S. Subsidiaries Guaranty EXHIBIT G-2 - Form of Foreign Subsidiaries Guaranty EXHIBIT H - Form of U.S. Pledge Agreement EXHIBIT I - Form of U.S. Security Agreement EXHIBIT J-1 - Form of Solvency Certificate EXHIBIT J-2 - Form of Solvency Opinion EXHIBIT K - Form of Assignment and Assumption Agreement EXHIBIT L - Form of Intercompany Note EXHIBIT M - Form of Shareholder Subordinated Note EXHIBIT N - Form of Form of Special Colombian Put Notes EXHIBIT O - Form of Consent Letter EXHIBIT P - Form of Intercompany Subordination Agreement EXHIBIT Q - Form of Capital Call Agreement -vii- CREDIT AGREEMENT, dated as of March 28, 2003, among DHM HOLDING COMPANY, INC., a Delaware corporation ("Holdings"), DOLE FOOD COMPANY, INC., a Delaware corporation (the "U.S. Borrower"), SOLVEST LTD., a corporation 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 Administrative Agent (in such capacity, the "Administrative Agent"), THE BANK OF NOVA SCOTIA and BANC OF AMERICA SECURITIES LLC, as Co-Syndication Agents (in such capacity, each, a "Co-Syndication Agent" and, collectively, the "Co-Syndication Agents"), FLEET NATIONAL BANK and SOCIETE GENERALE, as Co-Documentation Agents (in such capacity, each, a "Co-Documentation Agent" and, collectively, the "Co-Documentation Agents") and DEUTSCHE BANK SECURITIES INC., THE BANK OF NOVA SCOTIA AND BANC OF AMERICA SECURITIES LLC, as Joint Lead Arrangers and Book Runners (in such capacity, each a "Joint Lead Arranger" and, collectively, the "Joint Lead Arrangers"). 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, subject to and upon the terms and conditions herein set forth, the Lenders are willing to make available to the Borrowers on a several (but not joint) basis the credit facilities provided for herein; NOW, THEREFORE, IT IS AGREED: SECTION 1. Amount and Terms of Credit. 1.01 Commitments. (a) Tranche A Term Loans. Subject to and upon the terms and conditions set forth herein, each Lender with a Tranche A Term Loan Commitment severally agrees to make a term loan (each, a "Tranche A Term Loan" and, collectively, the "Tranche A Term Loans") to the U.S. Borrower, which Tranche A Term Loans: (i) shall be incurred by the U.S. Borrower pursuant to a single drawing on the Initial Borrowing Date for the purposes described in Section 7.05(a); (ii) shall be denominated in Dollars; (iii) except as hereafter provided, shall, at the option of the U.S. Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided that (A) except as otherwise specifically provided in Section 1.10(b), all Tranche A Term Loans made as part of the same Borrowing shall at all times consist of Tranche A Term Loans of the same Type and (B) unless the Administrative Agent has determined that the Syndication Date has occurred (at which time this clause (B) shall no longer be applicable), no more than three Borrowings of Tranche A Term Loans to be maintained as Eurodollar Loans may be incurred prior to the 90th day after the Initial Borrowing Date (or, if later, the last day of the Interest Period applicable to the third Borrowing of Eurodollar Loans referred to below), each of which Borrowings of Eurodollar Loans may only have an Interest Period of one month, 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 Initial Borrowing Date, the second of which Borrowings may only be made on the last day of the Interest Period of the first such Borrowing and the third of which Borrowings may only be made on the last day of the Interest Period of the second such Borrowing; and (iv) shall be made by each Lender in that initial aggregate principal amount as is equal to the Tranche A Term Loan Commitment of such Lender on the Initial Borrowing Date (before giving effect to the termination thereof on such date pursuant to Section 3.03(b)). Once repaid, Tranche A Term Loans incurred hereunder may not be reborrowed. (b) Tranche B Term Loans. Subject to and upon the terms and conditions set forth herein, each Lender with a Tranche B Term Loan Commitment severally agrees to make a term loan (each, a "Tranche B Term Loan" and, collectively, the "Tranche B Term Loans") to the Bermuda Borrower, which Tranche B Term Loans: (i) shall be incurred by the Bermuda Borrower pursuant to a single drawing on the Initial Borrowing Date for the purposes described in Section 7.05(a); (ii) shall be denominated in Dollars; (iii) except as hereafter provided, shall, at the option of the Bermuda Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided that (A) except as otherwise specifically provided in Section 1.10(b), all Tranche B Term Loans made as part of the same Borrowing shall at all times consist of Tranche B Term Loans of the same Type and (B) unless the Administrative Agent has determined that the Syndication Date has occurred (at which time this clause (B) shall no longer be applicable), no more than three Borrowings of Tranche B Term Loans to be maintained as Eurodollar Loans may be incurred prior to the 90th day after the Initial Borrowing Date (or, if later, the last day of the Interest Period applicable to the third Borrowing of Eurodollar Loans referred to below), each of which Borrowings of Eurodollar Loans may only have an Interest Period of one month, and the first of which Borrowings may only be made on the same date as the initial Borrowing of Tranche A Term Loans that are maintained as Eurodollar Loans, the second of which Borrowings may only be made on the last day of the Interest Period of the first such Borrowing and the third of which Borrowings may only be made on the last day of the Interest Period of the second such Borrowing; and (iv) shall be made by each Lender in that initial aggregate principal amount as is equal to the Tranche B Term Loan Commitment of such Lender on the Initial Borrowing Date (before giving effect to the termination thereof on such date pursuant to Section 3.03(c)). Once repaid, Tranche B Term Loans incurred hereunder may not be reborrowed. -2- (c) Multicurrency Facility Revolving Loans. Subject to and upon the terms and conditions set forth herein, each Multicurrency Facility RL Lender severally agrees to make, at any time and from time to time on or after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, a revolving loan or revolving loans to the Bermuda Borrower (each, a "Multicurrency Facility Revolving Loan" and, collectively, the "Multicurrency Facility Revolving Loans"), which Multicurrency Facility Revolving Loans: (i) shall (subject to Section 1.14) be made and maintained in the respective Available Currency elected by the Bermuda Borrower; (ii) except as hereafter provided, 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, Eurodollar Loans or Euro Denominated Revolving Loans, provided that (A) except as otherwise specifically provided in Section 1.10(b), all Multicurrency Facility Revolving Loans made as part of the same Borrowing shall at all times consist of Multicurrency Facility Revolving Loans of the same Type, and (B) unless the Administrative Agent has determined that the Syndication Date has occurred (at which time this clause (B) shall no longer be applicable), (1) no more than three Borrowings of Multicurrency Facility Revolving Loans to be maintained as Eurodollar Loans may be incurred prior to the 90th day after the Initial Borrowing Date (or, if later, the last day of the Interest Period applicable to the third Borrowing of Eurodollar Loans referred to below), each of which Borrowings of Eurodollar Loans may only have an Interest Period of one month, and the first of which Borrowings may only be made on the same date as the initial Borrowing of Tranche A Term Loans that are maintained as Eurodollar Loans, the second of which Borrowings may only be made on the last day of the Interest Period of the first such Borrowing and the third of which Borrowings may only be made on the last day of the Interest Period of the second such Borrowing and (2) all Borrowings of Euro Denominated Revolving Loans shall have Interest Periods of one week; (iii) may be repaid and reborrowed in accordance with the provisions hereof; (iv) shall not be made (and shall not be required to be made) by any Multicurrency Facility RL Lender in any instance where the incurrence thereof (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) would cause the Individual Multicurrency Facility RL Exposure of such Multicurrency Facility RL Lender to exceed the amount of its Multicurrency Facility Revolving Loan Commitment at such time; and (v) shall not be made (and shall not be required to be made) by any Multicurrency Facility RL Lender if the making of same would cause the Aggregate Multicurrency Facility RL Exposure (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) to exceed the Total Multicurrency Facility Revolving Loan Commitment as then in effect. -3- (d) Dollar Facility Revolving Loans. Subject to and upon the terms and conditions set forth herein, each Dollar Facility RL Lender severally agrees to make, at any time and from time to time on or after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, (I) a revolving loan or revolving loans to the U.S. Borrower (each, a "U.S. Borrower Dollar Facility Revolving Loan" and, collectively, the "U.S. Borrower Dollar Facility Revolving Loans") and (II) a revolving loan or revolving loans to the Bermuda Borrower (each, a "Bermuda Borrower Dollar Facility Revolving Loan" and, collectively, the "Bermuda Borrower Dollar Facility Revolving Loans" and with the revolving loans made to the U.S. Borrower or the Bermuda Borrower pursuant to this Section 1.01(d) being each called a "Dollar Facility Revolving Loan" and, collectively, the "Dollar Facility Revolving Loans" and, together with the Multicurrency Facility Revolving Loans, the "Revolving Loans"), which Dollar Facility Revolving Loans: (i) shall be made and maintained in Dollars; (ii) except as hereafter provided, shall, at the option of the U.S. Borrower or 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 (A) except as otherwise specifically provided in Section 1.10(b), all Dollar Facility Revolving Loans made as part of the same Borrowing shall at all times consist of Dollar Facility Revolving Loans of the same Type, and (B) unless the Administrative Agent has determined that the Syndication Date has occurred (at which time this clause (B) shall no longer be applicable), no more than three Borrowings of Dollar Facility Revolving Loans to be maintained as Eurodollar Loans may be incurred prior to the 90th day after the Initial Borrowing Date (or, if later, the last day of the Interest Period applicable to the third Borrowing of Eurodollar Loans referred to below), each of which Borrowings of Eurodollar Loans may only have an Interest Period of one month, and the first of which Borrowings may only be made on the same date as the initial Borrowing of Tranche A Term Loans that are maintained as Eurodollar Loans, the second of which Borrowings may only be made on the last day of the Interest Period of the first such Borrowing and the third of which Borrowings may only be made on the last day of the Interest Period of the second such Borrowing; (iii) may be repaid and reborrowed in accordance with the provisions hereof; (iv) shall not be made (and shall not be required to be made) by any Dollar Facility RL Lender in any instance where the incurrence thereof (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) would cause the Individual Dollar Facility RL Exposure of such Dollar Facility RL Lender to exceed the amount of its Dollar Facility Revolving Loan Commitment at such time; (v) shall not be made (and shall not be required to be made) by any Dollar Facility RL Lender if the making of same would cause the Aggregate Dollar Facility RL Exposure (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) to exceed the Total Dollar Facility Revolving Loan Commitment as then in effect; and -4- (vi) in the case of any Borrowing of Bermuda Borrower Dollar Facility Revolving Loans, shall not be made (and shall not be required to be made) by any Dollar Facility RL Lender if the making of same would cause the Aggregate Bermuda Borrower Dollar Facility RL Exposure (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) to exceed $50,000,000. The Bermuda Borrower shall have no liability with respect to any U.S. Borrower Dollar Facility Revolving Loans which may be extended to, and which shall constitute obligations of, the U.S. Borrower. (e) Multicurrency Facility Swingline Loans. Subject to and upon the terms and conditions set forth herein, the Swingline Lender agrees to make, at any time and from time to time on or after the Initial Borrowing Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans to the Bermuda Borrower (each, a "Multicurrency Facility Swingline Loan" and, collectively, the "Multicurrency Facility Swingline Loans"), which Multicurrency Facility Swingline Loans: (i) shall (subject to Section 1.14) be made and maintained in the respective Available Currency elected by the Bermuda Borrower; (ii) shall be made and maintained as Base Rate Loans or Euro Denominated Swingline Loans; (iii) may be repaid and reborrowed in accordance with the provisions hereof; (iv) shall not be made (and shall not be required to be made) if the making of same would cause the Aggregate Multicurrency Facility RL Exposure (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) to exceed the Total Multicurrency Facility Revolving Loan Commitment at such time; and (v) shall not exceed in aggregate principal amount at any time outstanding (taking the Dollar Equivalents of all amounts in Euros), when added to the aggregate principal amount of Dollar Facility Swingline Loans then outstanding, the Maximum Swingline Amount. Notwithstanding anything to the contrary contained in this Section 1.01(e), (x) the Swingline Lender shall not be obligated to make any Multicurrency Facility Swingline Loans at a time when a Lender Default exists with respect to any Multicurrency Facility RL Lender unless the Swingline Lender has entered into arrangements satisfactory to it to eliminate the Swingline Lender's risk with respect to the Defaulting Lender's or Defaulting Lenders' refunding obligations (through the requirement that Mandatory Multicurrency Facility RL Borrowings be made from time to time) in respect of such Multicurrency Facility Swingline Loans, including by cash collateralizing (in the relevant currency or currencies) such Defaulting Lender's or Defaulting Lenders' Multicurrency Facility RL Percentages of the outstanding Multicurrency Facility Swingline Loans and (y) the Swingline Lender shall not make any Multicurrency Facility Swingline Loan after it has received written notice from any Credit Agreement Party, the -5- Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as the Swingline Lender shall have received written notice (A) of rescission of all such notices from the party or parties originally delivering such notice or notices or (B) of the waiver of such Default or Event of Default by the Required Lenders. (f) Dollar Facility Swingline Loans. Subject to and upon the terms and conditions set forth herein, the Swingline Lender agrees to make, at any time and from time to time on or after the Initial Borrowing Date and prior to the Swingline Expiry Date, (I) a revolving loan or revolving loans to the U.S. Borrower (each, a "U.S. Borrower Dollar Facility Swingline Loan" and, collectively, the "U.S. Borrower Dollar Facility Swingline Loans") and (II) a revolving loan or revolving loans to the Bermuda Borrower (each, a "Bermuda Borrower Dollar Facility Swingline Loan" and, collectively, the "Bermuda Borrower Dollar Facility Swingline Loans" and with the revolving loans made to the U.S. Borrower or the Bermuda Borrower pursuant to this Section 1.01(f) being each called a "Dollar Facility Swingline Loan" and, collectively, the "Dollar Facility Swingline Loans" and, together with Multicurrency Facility Swingline Loans, the "Swingline Loans"), which Dollar Facility Swingline Loans: (i) shall be made and maintained in Dollars; (ii) shall be made and maintained as Base Rate Loans; (iii) may be repaid and reborrowed in accordance with the provisions hereof; (iv) shall not be made (and shall not be required to be made) if the making of same would cause the Aggregate Dollar Facility RL Exposure (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) to exceed the Total Dollar Facility Revolving Loan Commitment as then in effect; (v) shall not exceed in aggregate principal amount at any time outstanding, when added to the aggregate principal amount of Multicurrency Facility Swingline Loans then outstanding (taking the Dollar Equivalents of all amounts in Euros), the Maximum Swingline Amount; and (vi) in the case of any Borrowing of Bermuda Borrower Dollar Facility Swingline Loans, shall not be made (and shall not be required to be made) if the making of same would cause the Aggregate Bermuda Borrower Dollar Facility RL Exposure (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) to exceed $50,000,000. Notwithstanding anything to the contrary contained in this Section 1.01(f), (x) the Swingline Lender shall not be obligated to make any Dollar Facility Swingline Loans at a time when a Lender Default exists with respect to any Dollar Facility RL Lender unless the Swingline Lender has entered into arrangements satisfactory to it to eliminate the Swingline Lender's risk with respect to the Defaulting Lender's or Defaulting Lenders' refunding obligations (through the requirement that Mandatory Dollar Facility RL Borrowings be made from time to time) in respect of such Dollar Facility Swingline Loans, including by cash collateralizing such -6- Defaulting Lender's or Defaulting Lenders' Dollar Facility RL Percentages of the outstanding Dollar Facility Swingline Loans and (y) the Swingline Lender shall not make any Dollar Facility Swingline Loan after it has received written notice from any Credit Agreement Party, the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as the Swingline Lender shall have received written notice (A) of rescission of all such notices from the party or parties originally delivering such notice or notices or (B) of the waiver of such Default or Event of Default by the Required Lenders. The Bermuda Borrower shall have no liability with respect to any U.S. Borrower Dollar Facility Swingline Loans which may be extended to, and shall constitute obligations of, the U.S. Borrower. (g) Refunding of Multicurrency Facility Swingline Loans. On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Multicurrency Facility RL Lenders that the outstanding Multicurrency Facility Swingline Loans in a given Available Currency shall be funded with a Borrowing of Multicurrency Facility Revolving Loans in such Available Currency (provided that (x) such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 10 and (y) if a Sharing Event shall have occurred, all such Multicurrency Facility Swingline Loans shall be denominated in Dollars in accordance with the provisions of Section 1.14, and refunded through a Mandatory Multicurrency Facility RL Borrowing denominated in Dollars as provided below), in which case a Borrowing of Multicurrency Facility Revolving Loans denominated in the respective Available Currency (subject to the provisions of clause (y) of the immediately preceding parenthetical sentence) (each such Borrowing, a "Mandatory Multicurrency Facility RL Borrowing") shall be made on the third succeeding Business Day by all Multicurrency Facility RL Lenders pro rata based on each such Multicurrency Facility RL Lender's Multicurrency Facility RL Percentage and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Multicurrency Facility Swingline Loans. Each Multicurrency Facility RL Lender hereby irrevocably agrees to make Multicurrency Facility Revolving Loans in the relevant Available Currency upon three Business Days' notice pursuant to each Mandatory Multicurrency Facility RL Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Multicurrency Facility RL Borrowing may not comply with the minimum amount for Borrowings otherwise required hereunder, (ii) whether any conditions specified in Sections 6A and 6B are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Multicurrency Facility RL Borrowing, (v) the amount of the Total Multicurrency Facility Revolving Loan Commitment at such time and (vi) the amount of the Multicurrency Facility Revolving Loan Commitment of such Multicurrency Facility RL Lender at such time. In the event that any Mandatory Multicurrency Facility RL Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under any bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to either Borrower), then each Multicurrency Facility RL Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Multicurrency Facility RL Borrowing would otherwise have occurred, but adjusted for any payments received from either Borrower on or after such date and prior to such purchase) from the Swingline Lender such participations in such outstanding Multicurrency Facility Swingline Loans as shall be necessary to cause such Multicurrency Facility RL Lenders to share in such Multicurrency Facility Swingline Loans -7- ratably based upon their respective Multicurrency Facility RL Percentages, provided that (x) all interest payable on the Multicurrency Facility Swingline Loans shall be for the account of the Swingline Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Multicurrency Facility RL Lender shall be required to pay the Swingline Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Multicurrency Facility RL Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate otherwise applicable to Multicurrency Facility Revolving Loans made in the relevant Available Currency. Notwithstanding anything to the contrary contained above in this Section 1.01(g), upon the occurrence of a Sharing Event, all outstanding Multicurrency Facility Swingline Loans shall, as provided in Section 1.14, be automatically converted into U.S. Dollar denominated Multicurrency Facility Swingline Loans and, to the extent the respective Mandatory Multicurrency Facility RL Borrowing has not already occurred in respect of such Multicurrency Facility Swingline Loans, a Mandatory Multicurrency Facility RL Borrowing shall be effected with respect thereto in accordance with the provisions of this Section 1.01(g). (h) Refunding of Dollar Facility Swingline Loans. On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Dollar Facility RL Lenders that the outstanding U.S. Borrower Dollar Facility Swingline Loans or Bermuda Borrower Dollar Facility Swingline Loans shall be funded with a Borrowing of U.S. Borrower Dollar Facility Revolving Loans or Bermuda Borrower Dollar Facility Revolving Loans, as the case may be, in Dollars (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 10), in which case a Borrowing of U.S. Borrower Dollar Facility Revolving Loans or Bermuda Borrower Dollar Facility Revolving Loans, as the case may be (each such Borrowing, a "Mandatory Dollar Facility RL Borrowing") shall be made on the third succeeding Business Day by all Dollar Facility RL Lenders pro rata based on each such Dollar Facility RL Lender's Dollar Facility RL Percentage and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Dollar Facility Swingline Loans. Each Dollar Facility RL Lender hereby irrevocably agrees to make U.S. Borrower Dollar Facility Revolving Loans (in the case of a refunding of U.S. Borrower Dollar Facility Swingline Loans) and Bermuda Borrower Dollar Facility Revolving Loans (in the case of a refunding of Bermuda Borrower Dollar Facility Swingline Loans) upon one Business Day's notice pursuant to each Mandatory Dollar Facility RL Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Dollar Facility RL Borrowing may not comply with the minimum amount for Borrowings otherwise required hereunder, (ii) whether any conditions specified in Sections 6A and 6B are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Dollar Facility RL Borrowing, (v) the amount of the Total Dollar Facility Revolving Loan Commitment at such time and (vi) the amount of the Dollar Facility Revolving Loan Commitment of such Dollar Facility RL Lender at such time. In the event that any Mandatory Dollar Facility RL Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under any -8- bankruptcy, reorganization, dissolution, insolvency, receivership, administration or liquidation or similar law with respect to either Borrower), then each Dollar Facility RL Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Dollar Facility RL Borrowing would otherwise have occurred, but adjusted for any payments received from either Borrower on or after such date and prior to such purchase) from the Swingline Lender such participations in such outstanding Dollar Facility Swingline Loans as shall be necessary to cause such Dollar Facility RL Lenders to share in such Dollar Facility Swingline Loans ratably based upon their respective Dollar Facility RL Percentages, provided that (x) all interest payable on the Dollar Facility Swingline Loans shall be for the account of the Swingline Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Dollar Facility RL Lender shall be required to pay the Swingline Lender interest on the principal amount of the participation purchased for each day from and including the day upon which the Mandatory Dollar Facility RL Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Dollar Facility Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter. 1.01 Minimum Borrowing Amounts, etc. The aggregate principal amount of each Borrowing of Loans shall not be less than the Minimum Borrowing Amount applicable to Borrowings of the respective Type and Tranche of Loans to be made or maintained pursuant to the respective Borrowing, provided that Mandatory Multicurrency Facility RL Borrowings and Mandatory Dollar Facility RL Borrowings shall be made in the amounts required by Section 1.01(g) or (h), as applicable. More than one Borrowing may be incurred on any day, but at no time shall there be outstanding more than 30 Borrowings of Euro Rate Loans. 1.02 Notice of Borrowing. (a) Whenever a Borrower desires to make a Borrowing of Loans hereunder (excluding Borrowings of Swingline Loans and Mandatory Borrowings), 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 Euro Rate 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 (stated in the relevant currency), (ii) the date of such Borrowing (which shall be a Business Day), (iii) whether the respective Borrowing shall consist of Tranche A Term Loans, Tranche B Term Loans, Multicurrency Facility Revolving Loans, U.S. Borrower Dollar Facility Revolving Loans or Bermuda Borrower Dollar Facility Revolving Loans, (iv) in the case of Dollar Denominated Loans, whether the Dollar Denominated Loans being made pursuant to such Borrowing are to be initially maintained as Base Rate Loans or Eurodollar Loans and (v) in the case of Euro Rate Loans, the initial Interest Period to be applicable thereto. The Administrative Agent shall promptly give each Lender which is required to make Loans of the Tranche specified in the -9- 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. (b) (i) Whenever either Borrower desires to make a Borrowing of Swingline Loans hereunder, an Authorized Officer of such Borrower shall give the Swingline Lender, (i) not later than 1:00 P.M. (New York time) on the date that a Dollar Denominated Swingline Loan is to be made and (ii) not later than 1:00 P.M. (New York time) on the Business Day prior to the date that a Euro Denominated Swingline Loan is to be made, written notice or telephonic notice promptly confirmed in writing of each Swingline Loan to be made hereunder. Each such notice 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: (A) the date of Borrowing (which shall be a Business Day), (B) the aggregate principal amount of the Swingline Loans to be made pursuant to such Borrowing (stated in the relevant currency) and (C) whether the respective Swingline Loans shall constitute Multicurrency Facility Revolving Loans, U.S. Borrower Dollar Facility Swingline Loans or Bermuda Borrower Dollar Facility Swingline Loans. (ii) Mandatory Borrowings shall be made upon the notice specified in Section 1.01(g) or (h), as applicable, with each Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to the making of the Mandatory Borrowings as set forth in Section 1.01(g) or (h), as applicable. (c) Without in any way limiting the obligation of either Borrower to confirm in writing any telephonic notice permitted to be given hereunder, the Administrative Agent or the Swingline Lender (in the case of a Borrowing of Swingline Loans), the respective Issuing Lender (in the case of the issuance of Letters of Credit) or the respective Bank Guaranty Issuer (in the case of the issuance of Bank Guaranties), as the case may be, may, prior to receipt of written confirmation, act without liability upon the basis of such telephonic notice, believed by the Administrative Agent, the Swingline Lender, such Issuing Lender or such Bank Guaranty Issuer, as the case may be, in good faith to be from an Authorized Officer of such Borrower. In each such case, the Administrative Agent's, the Swingline Lender's, the respective Issuing Lender's or the respective Bank Guaranty Issuer's record of the terms of such telephonic notice shall be conclusive evidence of the contents of such notice, absent manifest error. 1.03 Disbursement of Funds. Not later than 1:00 P.M. (New York time) on the date specified in each Notice of Borrowing (or (x) in the case of Swingline Loans, not later than 3:00 P.M. (New York time) on the date specified pursuant to Section 1.03(b)(i) and (y) in the case of Mandatory Borrowings, not later than 10:00 A.M. (New York time) on the date specified in Section 1.01(g) or (h), as applicable), each Lender with a Commitment under the respective Tranche (or each Lender required to make Loans pursuant to the respective Mandatory Borrowing), 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 (or in the case of Swingline Loans, the Swingline Lender shall make available the full amount thereof). All such amounts shall be made available in Dollars (in the case of Dollar Denominated Loans) or in Euros (in the case of Euro Denominated Loans), as the case may be, and in immediately available funds at the Payment Office of the Administrative Agent, and the Administrative Agent will make available -10- to the respective Borrower the Payment Office or such other location as may be reasonably satisfactory to the Administrative Agent and specified in the relevant Notice of Borrowing (or to the Swingline Lender in the case of a Mandatory Borrowing) the aggregate of the amounts so made available by the Lenders prior to (x) 3:00 P.M. (New York time) on such day (excluding Swingline Loans and Revolving Loans made pursuant to Mandatory Borrowings) and (y) 4:00 P.M. (New York time) on such day, in the case of any Swingline Loan, in each case to the extent of funds actually received by the Administrative Agent prior to such times on such day. 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 U.S. Borrower or the Bermuda Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the respective 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 and (ii) if recovered from the respective Borrower, the rate of interest applicable to the respective 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 the relevant Borrower may have against any Lender as a result of any failure by such Lender to make Loans hereunder. 1.04 Notes. (a) Subject to the provisions of Section 1.05(k), the Bermuda Borrower's (in the case of Tranche B Term Loans, Multicurrency Facility Revolving Loans, Multicurrency Facility Swingline Loans, Bermuda Borrower Dollar Facility Revolving Loans and Bermuda Borrower Dollar Facility Swingline Loans) and the U.S. Borrower's (in the case of Tranche A Term Loans, U.S. Borrower Dollar Facility Revolving Loans and U.S. Borrower Dollar Facility Swingline Loans) obligation to pay the principal of, and interest on, the Loans made by each Lender shall be evidenced (i) if Tranche A 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 A Term Note" and, collectively, the "Tranche A Term Notes"), (ii) if Tranche B 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 B Term Note" and, collectively, the "Tranche B Term Notes"), (iii) if Multicurrency Facility Revolving Loans, by a promissory note duly executed and delivered by the Bermuda Borrower substantially in the form of Exhibit B-3, with blanks appropriately completed in conformity herewith (each, a "Multicurrency Facility Revolving Note" and, collectively, the "Multicurrency Facility Revolving Notes"), (iv) if U.S. Borrower Dollar Facility Revolving Loans, by a promissory note -11- duly executed and delivered by the U.S. Borrower substantially in the form of Exhibit B-4, with blanks appropriately completed in conformity herewith (each, a "U.S. Borrower Dollar Facility Revolving Note" and, collectively, the "U.S. Borrower Dollar Facility Revolving Notes"), (v) if Bermuda Borrower Dollar Facility Revolving Loans, by a promissory note duly executed and delivered by the Bermuda Borrower substantially in the form of Exhibit B-5, with blanks appropriately completed in conformity herewith (each, a "Bermuda Borrower Dollar Facility Revolving Note" and, collectively, the "Bermuda Borrower Dollar Facility Revolving Notes"), (vi) if Multicurrency Facility Swingline Loans, by a promissory note duly executed and delivered by the Bermuda Borrower substantially in the form of Exhibit B-6, with blanks appropriately completed in conformity herewith (the "Multicurrency Facility Swingline Note"), (vii) if U.S. Borrower Dollar Facility Swingline Loans, by a promissory note duly executed and delivered by the U.S. Borrower substantially in the form of Exhibit B-7, with blanks appropriately completed in conformity herewith (the "U.S. Borrower Dollar Facility Swingline Note"), and (viii) if Bermuda Borrower Dollar Facility Swingline Loans, by a promissory note duly executed and delivered by the Bermuda Borrower substantially in the form of Exhibit B-8, with blanks appropriately completed in conformity herewith (the "Bermuda Borrower Dollar Facility Swingline Note"). (b) The Tranche A Term Note issued to each Lender with a Tranche A Term Loan Commitment or outstanding Tranche A Term Loans shall (i) be executed by the U.S. Borrower, (ii) be payable to such Lender or its registered assigns and be dated the Initial Borrowing Date (or, in the case of any Tranche A Term Note issued after the Initial Borrowing Date, the date of issuance thereof), (iii) be in a stated principal amount (expressed in Dollars) equal to the Tranche A Term Loan Commitment of such Lender on the Initial Borrowing Date before giving effect to any reductions thereto on such date (or, in the case of any Tranche A Term Note issued after the Initial Borrowing Date, in a stated principal amount (expressed in Dollars) equal to the outstanding principal amount of the Tranche A Term Loan of such Lender on the date of the issuance thereof) and be payable (in Dollars) in the principal amount of the Tranche A Term Loan evidenced thereby from time to time, (iv) mature on the Tranche A Term Loan Maturity Date, (v) bear interest as provided in the appropriate clauses of Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to voluntary repayment as provided in Section 4.01 and mandatory repayment as provided in Section 4.02 and (vii) be entitled to the benefits of this Agreement and the other Credit Documents. (c) The Tranche B Term Note issued to each Lender with a Tranche B Term Loan Commitment or outstanding Tranche B Term Loans shall (i) be executed by the Bermuda Borrower, (ii) be payable to such Lender (or an affiliate designated by such Lender) or its registered assigns and be dated the Initial Borrowing Date (or, in the case of any Tranche B Term Note issued after the Initial Borrowing Date, the date of issuance thereof), (iii) be in a stated principal amount (expressed in Dollars) equal to the Tranche B Term Loan Commitment of such Lender on the Initial Borrowing Date (or, in the case of any Tranche B Term Note issued after the Initial Borrowing Date, in a stated principal amount (expressed in Dollars) equal to the outstanding principal amount of the Tranche B Term Loan of such Lender on the date of the issuance thereof) and be payable (in Dollars) in the principal amount of the Tranche B Term Loan evidenced thereby from time to time, (iv) mature on the Tranche B Term Loan Maturity Date, (v) bear interest as provided in the appropriate clause of Section 1.08 in respect of the Base -12- Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to voluntary repayment as provided in Section 4.01 and mandatory repayment as provided in Section 4.02 and (vii) be entitled to the benefits of this Agreement and the other Credit Documents. (d) The Multicurrency Facility Revolving Note issued to each Multicurrency Facility RL Lender shall (i) be executed by the Bermuda Borrower, (ii) be payable to the order of such Multicurrency Facility RL Lender (or an affiliate designated by such Multicurrency Facility RL Lender) or its registered assigns and be dated the Initial Borrowing Date (or, if issued thereafter, the date of issuance thereof), (iii) be in a stated principal amount (expressed in Dollars) equal to the Multicurrency Facility Revolving Loan Commitment of such Multicurrency Facility RL Lender on the date of issuance thereof (or, if issued after the termination of such Multicurrency Facility Revolving Loan Commitment, in an amount equal to the Individual Multicurrency Facility RL Exposure of the respective Multicurrency Facility RL Lender), provided that if, because of fluctuations in exchange rates after the Initial Borrowing Date, the Multicurrency Facility Revolving Note of any Multicurrency Facility RL Lender would not be at least as great as the outstanding principal amount (taking the Dollar Equivalent of all Euro Denominated Loans evidenced thereby) of the Multicurrency Facility Revolving Loans made by such Multicurrency Facility RL Lender at any time outstanding, the respective Multicurrency Facility RL Lender may request (and in such case the Bermuda Borrower shall promptly execute and deliver) a new Multicurrency Facility Revolving Note in an amount equal to the aggregate principal amount (taking the Dollar Equivalent of all Euro Denominated Loans evidenced thereby) of the Multicurrency Facility Revolving Loans of such Multicurrency Facility RL Lender outstanding on the date of the issuance of such new Multicurrency Facility Revolving Note, (iv) with respect to each Multicurrency Facility Revolving Loan evidenced thereby, be payable in the respective Available Currency in which such Multicurrency Facility Revolving Loan was made, provided that the obligations with respect to each Euro Denominated Loan evidenced thereby shall be subject to conversion into Dollar Denominated Loans as provided in (and in the circumstances contemplated by) Section 1.14, (v) mature on the Revolving Loan Maturity Date, (vi) bear interest as provided in the appropriate clauses of Section 1.08 in respect of the Multicurrency Facility Revolving Loans evidenced thereby from time to time, (vii) be subject to voluntary prepayment as provided in Section 4.01 and mandatory repayment as provided in Section 4.02 and (viii) be entitled to the benefits of this Agreement and the other Credit Documents. (e) The U.S. Borrower Dollar Facility Revolving Note issued to each Dollar Facility RL Lender shall (i) be executed by the U.S. Borrower, (ii) be payable to the order of such Dollar Facility RL Lender or its registered assigns and be dated the Initial Borrowing Date (or, if issued thereafter, the date of issuance thereof), (iii) be in a stated principal amount (expressed in Dollars) equal to the Dollar Facility Revolving Loan Commitment of such Dollar Facility RL Lender on the date of issuance thereof (or, if issued after the date of the termination of such Dollar Facility Revolving Loan Commitment, in a stated principal amount equal to the Individual U.S. Borrower Dollar Facility RL Exposure of the respective Dollar Facility RL Lender) and be payable in Dollars in the outstanding principal amount of Dollar Facility Revolving Loans evidenced thereby, (iv) mature on the Revolving Loan Maturity Date, (v) bear interest as provided in the appropriate clauses of Section 1.08 in respect of Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to voluntary -13- prepayment as provided in Section 4.01 and mandatory repayment as provided in Section 4.02 and (vii) be entitled to the benefits of this Agreement and the other Credit Documents. (f) The Bermuda Borrower Dollar Facility Revolving Note issued to each Dollar Facility RL Lender shall (i) be executed by the Bermuda Borrower, (ii) be payable to the order of such Dollar Facility RL Lender or its registered assigns and be dated the Initial Borrowing Date (or, if issued thereafter, the date of issuance thereof), (iii) be in a stated principal amount (expressed in Dollars) equal to the Dollar Facility Revolving Loan Commitment of such Dollar Facility RL Lender on the date of issuance thereof (or, if issued after the date of the termination of such Dollar Facility Revolving Loan Commitment, in a stated principal amount equal to the Individual Bermuda Borrower Dollar Facility RL Exposure of the respective Dollar Facility RL Lender) and be payable in Dollars in the outstanding principal amount of Dollar Facility Revolving Loans evidenced thereby, (iv) mature on the Revolving Loan Maturity Date, (v) bear interest as provided in the appropriate clauses of Section 1.08 in respect of Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to voluntary prepayment as provided in Section 4.01 and mandatory repayment as provided in Section 4.02 and (vii) be entitled to the benefits of this Agreement and the other Credit Documents. (g) The Multicurrency Facility Swingline Note issued to the Swingline Lender shall (i) be executed by the Bermuda Borrower, (ii) be payable to the order of the Swingline Lender and be dated the Initial Borrowing Date, (iii) be in a stated principal amount (expressed in Dollars) equal to the Maximum Swingline Amount, provided that if, because of fluctuations in exchange rates after the Initial Borrowing Date, the Multicurrency Facility Swingline Note would not be at least as great as the outstanding principal amount (taking the Dollar Equivalent of all Multicurrency Facility Swingline Loans denominated in Euros) of Multicurrency Facility Swingline Loans at any time outstanding, the Swingline Lender may request that the Bermuda Borrower (and in such case the Bermuda Borrower shall) promptly execute and deliver a new Multicurrency Facility Swingline Note in an amount equal to the aggregate principal amount (taking the Dollar Equivalent of all Multicurrency Facility Swingline Loans outstanding in Euros) of Multicurrency Facility Swingline Loans outstanding, (iv) be payable with respect to each Multicurrency Facility Swingline Loan in the respective Available Currency in which such Multicurrency Facility Swingline Loan was made, provided that the obligations evidenced by the Multicurrency Facility Swingline Note with respect to Multicurrency Facility Swingline Loans incurred in Euros shall be subject to conversion into Dollar Denominated Loans as provided in (and in the circumstances contemplated by) Section 1.14, (v) mature on the Swingline Expiry Date, (vi) bear interest as provided in the appropriate clause of Section 1.08 in respect of the Multicurrency Facility Swingline Loans evidenced thereby from time to time, (vii) be subject to voluntary prepayment as provided in Section 4.01 and mandatory repayment as provided in Section 4.02 and (viii) be entitled to the benefits of this Agreement and the other Credit Documents. (h) The U.S. Borrower Dollar Facility Swingline Note issued to the Swingline Lender shall (i) be executed by the U.S. Borrower, (ii) be payable to the order of the Swingline Lender or its registered assigns and be dated the Initial Borrowing Date, (iii) be in a stated principal amount (expressed in Dollars) equal to the Maximum Swingline Amount and be payable in Dollars in the principal amount of the outstanding Dollar Facility Swingline Loans evidenced thereby from time to time, (iv) mature on the Swingline Expiry Date, (v) bear interest -14- as provided in the appropriate clause of Section 1.08 in respect of the Base Rate Loans evidenced thereby, (vi) be subject to voluntary prepayment as provided in Section 4.01 and mandatory repayment as provided in Section 4.02 and (vii) be entitled to the benefits of this Agreement and the other Credit Documents. (i) The Bermuda Borrower Dollar Facility Swingline Note issued to the Swingline Lender shall (i) be executed by the Bermuda Borrower, (ii) be payable to the order of the Swingline Lender or its registered assigns and be dated the Initial Borrowing Date, (iii) be in a stated principal amount (expressed in Dollars) equal to the Maximum Swingline Amount and be payable in Dollars in the principal amount of the outstanding Dollar Facility Swingline Loans evidenced thereby from time to time, (iv) mature on the Swingline Expiry Date, (v) bear interest as provided in the appropriate clause of Section 1.08 in respect of the Base Rate Loans evidenced thereby, (vi) be subject to voluntary prepayment as provided in Section 4.01 and mandatory repayment as provided in Section 4.02 and (vii) be entitled to the benefits of this Agreement and the other Credit Documents. (j) Each Lender will note on its internal records the amount of each Loan made by it and each payment in respect thereof and will prior to any transfer of any of its Notes endorse on the reverse side thereof the outstanding principal amount of Loans evidenced thereby. Failure to make any such notation or any error in any such notation or endorsement shall not affect either Borrower's obligations in respect of any Loans. (k) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement, Notes shall only be delivered to Lenders that at any time specifically request the delivery of such Notes. No failure of any Lender to request or obtain a Note evidencing its Loans to either Borrower shall affect or in any manner impair the obligations of the respective Borrower to pay the Loans (and all related Obligations) which would otherwise be evidenced thereby in accordance with the requirements of this Agreement, and shall not in any way affect the security or guaranties therefor provided pursuant to the various Credit Documents. Any Lender that does not have a Note evidencing its outstanding Loans shall in no event be required to make the notations otherwise described in preceding clause (j). At any time when any Lender requests the delivery of a Note to evidence any of its Loans, the relevant Borrower shall promptly execute and deliver to the respective Lender the requested Note or Notes in the appropriate amount or amounts to evidence such Loans. 1.05 Conversions. Each Borrower shall have the option to convert, on any Business Day occurring after the Initial Borrowing Date, all or a portion equal to at least the applicable Minimum Borrowing Amount (and, if greater, in an integral multiple of $500,000) of the outstanding principal amount of Dollar Denominated Loans (other than Dollar Denominated Swingline Loans, which shall at all times be maintained as Base Rate Loans) made pursuant to one or more Borrowings of one or more Types of Dollar Denominated Loans under a single Tranche into a Borrowing or Borrowings of another Type of Dollar Denominated 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 -15- made pursuant to a single Borrowing to less than the applicable Minimum Borrowing Amount applicable thereto, (ii) unless the Required Lenders otherwise agree, Base Rate Loans may only be converted into Eurodollar Loans if no Default or Event of Default is in existence on the date of conversion, (iii) unless the Administrative Agent has determined that the Syndication Date has occurred (at which time this clause (iii) shall no longer be applicable), prior to the 90th day after the Initial Borrowing 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 or third Interest Period referred to in clause (B) of each of Sections 1.01(a)(iii) 1.01(b)(iii) and 1.01(d)(ii) and clause (1) of Section 1.01(c)(ii) and so long as such conversion does not result in a greater number of Borrowings of Eurodollar Loans prior to the 90th day after the Initial Borrowing Date as are permitted under Sections 1.01(a)(iii) 1.01(b)(iii) and 1.01(d)(ii) and clause (1) of Section 1.01(c)(ii) and (iv) no conversion pursuant to this Section 1.06 shall result in a greater number of Borrowings of Euro Rate Loans than is permitted under Section 1.02. Each such conversion shall be effected by a 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 Dollar Denominated Loans to be so converted, the Borrowing or Borrowings pursuant to which such Dollar Denominated Loans were made and, if to be converted into Eurodollar Loans, the Interest Period to be initially applicable thereto. The Administrative Agent shall give each Lender prompt notice of any such proposed conversion affecting any of its Dollar Denominated Loans. 1.06 Pro Rata Borrowings. All Borrowings of Tranche A Term Loans, Tranche B Term Loans, Multicurrency Facility Revolving Loans (including Mandatory Multicurrency Facility RL Borrowings) and Dollar Facility Revolving Loans (including U.S. Borrower Dollar Facility Revolving Loans, Bermuda Borrower Dollar Facility Revolving Loans and Mandatory Dollar Facility RL Borrowings) under this Agreement shall be incurred from the Lenders pro rata on the basis of such Lenders' Tranche A Term Loan Commitments, Tranche B Term Loan Commitments, Multicurrency Facility RL Percentages or Dollar Facility RL Percentages, as the case may be. All Borrowings of Swingline Loans shall be incurred from the Swingline Lender. 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. 1.07 Interest. (a) The U.S. Borrower hereby agrees to pay (in the case of Tranche A Term Loans and U.S. Borrower Dollar Facility Revolving Loans, in each case maintained as Base Rate Loans, and U.S. Borrower Dollar Facility Swingline Loans) and the Bermuda Borrower hereby agrees to pay (in the case of Tranche B Term Loans, Multicurrency Facility Revolving Loans, Multicurrency Facility Swingline Loans and Bermuda Borrower Dollar Facility Revolving Loans, in each case maintained as Base Rate Loans, and Bermuda Borrower Dollar Facility Swingline Loans (including any Euro Denominated Loan made to the Bermuda Borrower and converted into a Dollar Denominated Loan pursuant to Section 1.14)), interest in respect of the unpaid principal amount of each Base Rate Loan made to it from the date the proceeds thereof are made available to it (or, in the case of a conversion of any Euro Denominated Loan into a Dollar Denominated Loan pursuant to Section 1.14, from the date of the conversion of such Loan) until the earlier of (i) the maturity (whether by acceleration or -16- 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 A Term Loans and U.S. Borrower Dollar Facility Revolving Loans maintained as Eurodollar Loans) and the Bermuda Borrower hereby agrees to pay (in the case of Tranche B Term Loans, Multicurrency Facility Revolving Loans and Bermuda Borrower Dollar Facility Revolving Loans maintained as Eurodollar Loans), interest in respect of the unpaid principal amount of each Eurodollar Loan made to it from the date the proceeds thereof are made available to it 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) The Bermuda Borrower hereby agrees to pay interest in respect of the unpaid principal amount of each Euro Denominated Revolving Loan made to it from the date the proceeds thereof are made available to it until the maturity thereof (whether by acceleration, prepayment or otherwise) at a rate per annum which shall, during each Interest Period applicable thereto, be equal to the sum of the relevant Applicable Margin as in effect from time to time plus Euro LIBOR for such Interest Period plus any Mandatory Costs. (d) The Bermuda Borrower hereby agrees to pay interest in respect of the unpaid principal amount of each Euro Denominated Swingline Loan made to it from the date the proceeds thereof are made available to it until the maturity thereof (whether by acceleration, prepayment or otherwise) at a rate per annum which shall be equal to the sum of the Applicable Margin for Euro Denominated Revolving Loans as in effect from time to time plus the Overnight Euro Rate in effect from time to time during the period such Euro Denominated Swingline Loan is outstanding plus any Mandatory Costs. (e) 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 (1) in the case of overdue principal of, and interest or other overdue amounts owing with respect to, Euro Denominated Revolving Loans and overdue amounts owing with respect to Euro Denominated Letter of Credit Outstandings and Euro Denominated Bank Guaranty Outstandings, equal to 2% per annum in excess of the relevant Applicable Margin as in effect from time to time plus Euro LIBOR for such successive periods not exceeding three months as the Administrative Agent may determine from time to time in respect of amounts comparable to the amount not paid plus any Mandatory Costs, (2) in the case of overdue principal of, and interest or other amounts owing with respect to, Euro Denominated Swingline Loans, equal to 2% per annum in excess of the Applicable Margin for Euro Denominated Revolving Loans as in effect from time to time plus the Overnight Euro Rate as in effect from time to time plus any Mandatory Costs, (3) in all other cases, 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 -17- specific Tranche, the rate otherwise applicable to Dollar Facility Revolving 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. (f) Accrued (and theretofore unpaid) interest shall be payable (i) in respect of each Base Rate Loan and each Swingline Loan, quarterly in arrears on each Quarterly Payment Date, (ii) in respect of each Euro Rate Loan (other than a Euro Denominated Swingline 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. (g) Upon each Interest Determination Date, the Administrative Agent shall determine the Euro Rate for the respective Interest Period or Interest Periods and shall promptly notify the respective Borrower and the respective Lenders thereof. Each such determination shall, absent manifest error, be final and conclusive and binding on all parties hereto. 1.08 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 Euro Rate Loan (other than a Euro Denominated Swingline 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 Euro Rate 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 (each, an "Interest Period") applicable to such Euro Rate Loan, which Interest Period shall, at the option of such Borrower (but otherwise subject to clause (B) of Sections 1.01(a)(iii) 1.01(b)(iii) and 1.01(d)(ii) and clause (1) of Section 1.01(c)(ii) and clause (iii) of the proviso appearing in Section 1.06) be (x) in the case of a Eurodollar Loan, a one, two, three or six-month period or (y) in the case of any Euro Denominated Loan (other than a Euro Denominated Swingline Loan), a one, two, three or six-month period or (if required pursuant to clause (2) of Section 1.01(c)(ii)) a one-week period; provided that: (i) all Euro Rate Loans comprising the same Borrowing shall at all times have the same Interest Period; (ii) the initial Interest Period for any Euro Rate Loan shall commence on the date of Borrowing of such Euro Rate Loan (including, in the case of Dollar Denominated Loans, the date of any conversion thereto from a Borrowing of Base Rate Loans) and each Interest Period occurring thereafter in respect of such Euro Rate Loan shall commence on the day on which the next preceding Interest Period applicable thereto expires; (iii) if any Interest Period relating to a Euro Rate Loan begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall end on the last Business Day of such calendar month; -18- (iv) if any Interest Period for a Euro Rate Loan would otherwise expire on a day which is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided, however, that if any Interest Period for a Euro Rate Loan would otherwise expire on a day which is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the next preceding Business Day; (v) 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; and (vi) no Interest Period in respect of any Borrowing of Tranche A Term Loans or Tranche B 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 A Term Loans or Tranche B Term Loans, as the case may be, which have Interest Periods which will expire after such date will be in excess of the aggregate principal amount of such Tranche A Term Loans or Tranche B Term Loans, as the case may be, then outstanding less the aggregate amount of such required Scheduled Repayment. With respect to any Euro Denominated Loans (other than Euro Denominated Swingline Loans), at the end of any Interest Period applicable to a Borrowing thereof, the Bermuda Borrower may elect to split the respective Borrowing into two or more Borrowings of the same Type or combine two or more Borrowings of the same Type into a single Borrowing, in each case, by having an Authorized Officer of the Bermuda Borrower give notice thereof together with its election of one or more Interest Periods, in each case so long as each resulting Borrowing (x) has an Interest Period which complies with the foregoing requirements of this Section 1.09, (y) has a principal amount which is not less than the Minimum Borrowing Amount applicable to Borrowings of the respective Type and Tranche, and (z) does not cause a violation of the requirements of Section 1.02. If upon the expiration of any Interest Period applicable to a Borrowing of Euro Rate Loans, the respective Borrower has failed to elect, or is not permitted to elect, a new Interest Period to be applicable to such Euro Rate Loans as provided above, such Borrower shall be deemed to have elected (x) if Eurodollar Loans, to convert such Eurodollar Loans into Base Rate Loans and (y) if Euro Denominated Loans, to select a one-month Interest Period for such Euro Denominated Loans, in any such case effective as of the expiration date of such current Interest Period. 1.09 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 clauses (i) and (iv) below, may be made only by the Administrative Agent): (i) on any Interest Determination Date that, by reason of any changes arising after the 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 respective Euro Rate; or -19- (ii) at any time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Euro Rate Loan because of (x) any change since the Effective Date in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as, for example, but not limited to (A) a change in the basis of taxation of 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 date of this Agreement 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 Effective Date, that the making or continuance of any Euro Rate Loan has been made unlawful by any law or governmental rule, regulation or order (or would conflict with any governmental rule, regulation, guideline, request or order not having the force of law but with which such Lender customarily complies even though the failure to comply therewith would not be unlawful), or impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the applicable interbank market; or (iv) at any time that Euros are not available in sufficient amounts, as determined in good faith by the Administrative Agent, to fund any Borrowing of Euro Denominated Loans requested pursuant to Section 1.01; then, and in any such event, such Lender (or the Administrative Agent, in the case of clauses (i) or (iv) above) shall promptly give notice (by telephone confirmed in writing) to the affected Borrower, and, except in the case of clauses (i) and (iv) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (w) in the case of clause (i) above, (A) in the event Eurodollar Loans are so affected, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies Holdings, 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 and (B) in the event that any Euro Denominated Loan is so affected, the relevant Euro Rate shall be determined on the basis provided in the proviso to the definition of the relevant Euro Rate, (x) in the case of clause (ii) above, the respective Borrower or Borrowers agrees to pay to such Lender, upon written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (with the written notice as to the additional amounts owed to such Lender, submitted -20- 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 receipt of such notice), (y) 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 and (z) in the case of clause (iv) above, Euro Denominated Loans (exclusive of any such Euro Denominated Loans which have theretofore been funded) shall no longer be available until such time as the Administrative Agent notifies the Bermuda Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or notice pursuant to Section 1.03(b)(i) given by the Bermuda Borrower with respect to such Euro Denominated Loans which have not been incurred shall be deemed rescinded by the Bermuda Borrower. 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), (iii) or (iv) 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 Euro Rate Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the affected Borrower may (and in the case of a Euro Rate Loan affected by the circumstances described in Section 1.10(a)(iii) shall) either (x) if the affected Euro Rate Loan is then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Euro Rate Loan is then outstanding, upon at least three Business Days' written notice to the Administrative Agent, (A) in the case of a Eurodollar Loan, require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstance described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by applicable law) and (B) in the case of any Euro Rate Loan (other than a Eurodollar Loan), repay all outstanding Borrowings which include such affected Euro Rate Loans in full in accordance with the applicable requirements of Section 4.01; provided that, (i) if the circumstances described in Section 1.10(a)(iii) apply to any Euro Denominated Loan, the Bermuda Borrower may, in lieu of taking the actions described above, maintain such Euro Denominated Loan outstanding, in which case, (x) in the case of Euro Denominated Revolving Loans, the applicable Euro Rate shall be determined on the basis provided in the proviso to the definition of Euro LIBOR and (y) in the case of Euro Denominated Swingline Loans, the applicable interest rate shall be determined on the basis provided in the proviso to the definition of Overnight Euro Rate, as the case may be, unless the maintenance of such Euro Denominated Loan outstanding on such basis would not stop the conditions described in Section 1.10(a)(iii) from existing (in which case the actions described above, without giving effect to the proviso, shall be required to be taken) and (ii) if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 1.10(b). (c) If any Lender shall have determined after the Effective Date that the adoption or effectiveness after the Effective Date of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change after the Effective Date in the interpreta- -21- tion 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 corporation 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 corporation'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 corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender's or such other corporation'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 clause (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 corporation for such reduction in the rate of return to such Lender or such other corporation. 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. For the avoidance of doubt, nothing in this Section 1.10(c) shall require either Borrower or Holdings to pay to any Lender any amount for which such Lender is compensated by way of payment of Mandatory Costs. (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 Euro Denominated Loans or any category of liabilities which includes deposits by reference to which the interest rate on any Euro Denominated Loan is determined or any category of extensions of credit or other assets which includes loans by a non-United States office of any Lender to non-United States residents, then, unless such reserves are included in the calculation of the interest rate applicable to such Euro Denominated Loans or in Section 1.10(a)(ii), such Lender shall promptly notify Holdings and/or the Bermuda Borrower in writing specifying the additional amounts required to indemnify such Lender against the cost of maintaining such reserves (such written notice to provide in reasonable detail a computation of such additional amounts) and the Bermuda Borrower shall pay, to such Lender such specified amounts as additional interest at the time that the Bermuda Borrower is otherwise required to pay interest in respect of such Euro Denominated Loan or, if later, on written demand therefor by such Lender. 1.10 Compensation. The Borrowers jointly and severally agree to compensate each Lender, upon its written request (which request shall set forth in reasonable detail the basis -22- 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 Euro Rate 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, Euro Rate Loans does not occur on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn by the 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, 4.01 or 13.12(b)) or conversion of any of its Euro Rate Loans occurs on a date which is not the last day of an Interest Period applicable thereto; (iii) if any prepayment of any of its Euro Rate Loans 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 the respective 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). 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. 1.11 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, Letters of Credit 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 Loans, Dollar Denominated Letter of Credit Outstandings and Dollar Denominated Bank Guaranty Outstandings versus Euro Denominated Loans, Euro Denominated Letter of Credit Outstandings and Euro Denominated Bank Guaranty Outstandings); provided that, for designations made after the Effective Date (unless such designation is made after the occurrence of a Sharing Event as a result of any Lender's purchase of Loans 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 the Borrowers shall not be obligated to pay such excess increased costs (although if such designation results in increased costs, the Borrowers 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, each 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 -23- Lender) to designate another lending office for any Loans, Letters of Credit or Bank Guaranties affected by such event, provided that such designation is made on such terms that such Lender and its lending office suffer no economic, legal or regulatory disadvantage, with the object of avoiding the consequence of the event giving rise to the operation of such Section. Nothing in this Section 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. 1.12 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 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 "Replacement 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 Holdings, 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 (w) 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 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 at such time, together with all then unpaid interest with respect thereto at such time, (C) 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) -24- such Replaced Lender at such time, together with all then unpaid interest with respect thereto at such time, and (D) 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, (x) in the case of the replacement of any Multicurrency Facility Revolving Loan Commitment and/or Dollar Facility Revolving Loan Commitment, the respective Issuing Lender amounts equal to such Replaced Lender's Multicurrency Facility RL Percentage and/or Dollar Facility RL Percentage, as the case may be, of any Unpaid Drawings pursuant to Letters of Credit issued pursuant to the respective Tranche evidenced by such Commitments (which at such time remain Unpaid Drawings) with respect to Letters of Credit issued by such Issuing Lender to the extent such amount was not theretofore funded by such Replaced Lender, (y) in the case of the replacement of any Multicurrency Facility Revolving Loan Commitment, the respective Bank Guaranty Issuer amounts equal to such Replaced Lender's Multicurrency Facility RL Percentage of any Unreimbursed Payments pursuant to Bank Guaranties (which at such time remain Unreimbursed Payments) with respect to Bank Guaranties issued by such Bank Guaranty Issuer to the extent such amount was not theretofore funded by such Replaced Lender and (z) in the case of any replacement of Multicurrency Facility Revolving Loan Commitments or Dollar Facility Revolving Loan Commitments, the Swingline Lender an amount equal to such Replaced Lender's pro rata share of any Mandatory Multicurrency Facility RL Borrowing and/or Mandatory Dollar Facility RL Borrowing (as appropriate) (determined in accordance with Sections 1.01(g) and/or (h), as appropriate, and 1.07), to the extent such amount was not theretofore funded by such Replaced Lender, without duplication; and (ii) all obligations of the Borrowers 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, 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), delivery to the Replacement Lender of the appropriate Note or Notes executed by the respective Borrower, (x) the Replacement Lender shall become a Lender hereunder and, unless the respective Replaced Lender continues to have outstanding Term Loans or any Commitment hereunder, the Replaced Lender shall cease to constitute a Lender hereunder, except with respect to indemnification provisions under this Agreement (including, without limitation, Sections 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 Multicurrency Facility Revolving Loan Commitment or Dollar Facility Revolving Loan Commitment pursuant to this Section 1.13, the Multicurrency Facility RL Percentages and/or Dollar Facility RL Percentages, as the case may be, of the Lenders shall be automatically adjusted at such time to give effect to such replacement. In connection with any replacement of Lenders pursuant to, and as contemplated by, this Section 1.13, each of the U.S. Borrower and the Bermuda Borrower hereby irrevocably authorizes Holdings to take all necessary action, in the name of the U.S. -25- Borrower or the Bermuda Borrower, as the case may be, as described above in this Section 1.13 in order to effect the replacement of the respective Lender or Lenders in accordance with the preceding provisions of this Section 1.13. 1.13 Special Provisions Applicable to Lenders Upon the Occurrence of a Sharing Event. (a) On the date of the occurrence of a Sharing Event, automatically (and without the taking of any action) (x) all then outstanding Euro Denominated Loans, all Unpaid Drawings in respect of Letters of Credit issued for either Borrower's account owed in Euros and all Unreimbursed Payments in respect of Bank Guaranties issued for the Bermuda Borrower's account owed in Euros, shall be automatically converted into Loans of the respective Tranche maintained in, Unpaid Drawings of the respective Tranche owing in, or Unreimbursed Payments owing in, Dollars (in an amount equal to the Dollar Equivalent of the aggregate principal amount of the respective Loans, Unpaid Drawings or Unreimbursed Payments on the date such Sharing Event first occurred, which Loans, Unpaid Drawings and Unreimbursed Payments (i) shall continue to be owed by the U.S. Borrower or the Bermuda Borrower, as the case may be, (ii) shall at all times thereafter be deemed to be Base Rate Loans and (iii) shall be immediately due and payable on the date such Sharing Event has occurred) and (y) all principal, accrued and unpaid interest and other amounts owing with respect to such Euro Denominated Loans, Unpaid Drawings and Unreimbursed Payments shall be immediately due and payable in Dollars, taking the Dollar Equivalent of such principal, accrued and unpaid interest and other amounts. The occurrence of any conversion of Euro Denominated Loans, Unpaid Drawing or Unreimbursed Payments to Base Rate Loans as provided above in this Section 1.14(a) shall be deemed to constitute, for purposes of Section 1.11, a prepayment of Loans before the last day of any Interest Period relating thereto. (b) On the date of the occurrence of any Sharing Event, (i) if any Multicurrency Facility Swingline Loans are outstanding, a Mandatory Multicurrency Facility RL Borrowing shall be made by the respective Multicurrency Facility Lenders in accordance with the provisions of Section 1.01(g), (ii) if any Dollar Facility Swingline Loans are outstanding, one or more Mandatory Dollar Facility RL Borrowings shall be made in accordance with the requirements of Section 1.01(h), (iii) 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 various L/C Participants in the respective Letters of Credit shall make payments to the Issuing Lender therefor in accordance with the requirements of Section 2A.04 and (iv) 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 various B/G Participants in the respective Bank Guaranties shall make payments to the Bank Guaranty Issuer therefor in accordance with the requirements of Section 2B.04. Each Lender which is required to make payments pursuant to the immediately preceding sentence shall be obligated to do so in accordance with the terms of this Agreement. For purposes of making calculations pursuant to the following provisions of this Section 1.14, such payments shall be deemed to have been made on the date of the occurrence of the Sharing Event, before making such calculations. Notwithstanding anything to the contrary contained in the immediately preceding sentence, any Lender which has failed, or fails, to make any payments required to be made by it as described in this clause (b) (and/or the other relevant Sections of this Agreement) shall remain obligated to make such payments, together with interest thereon, and shall be obligated to the Swingline Lender, the respective Issuing Lender or the respective Bank Guaranty Issuer, as the case may -26- be, for any damages caused by its delay or failure in making any payments required to be made by it as described above. (c) On the date of the occurrence of a Sharing Event, the following actions shall be required to occur: (i) the participations of the RL Lenders in all then outstanding Letters of Credit shall be automatically adjusted so that each RL Lender shall participate in each outstanding Letter of Credit (whether a Multicurrency Facility Letter of Credit or Dollar Facility Letter of Credit) in accordance with their RL Percentages, rather than their Multicurrency Facility RL Percentages or their Dollar Facility RL Percentages, as the case may be, (ii) the participations of the RL Lenders in all then outstanding Bank Guaranties shall be automatically adjusted so that each RL Lender shall participate in each outstanding Bank Guaranty in accordance with their RL Percentages, rather than their Multicurrency Facility RL Percentages and (iii) if the outstanding principal of all then outstanding Revolving Loans, and Unpaid Drawings and Unreimbursed Payments theretofore paid, and owing to, the respective RL Lender (after giving effect to the conversions and events required by Sections 1.14(a) and (b)), is less than its RL Percentage of the outstanding principal amount of all Revolving Loans and the aggregate amount of all Unpaid Drawings and Unreimbursed Payments at such time, then such RL Lender shall purchase, for cash in Dollars, participations from other RL Lenders in their outstanding Revolving Loans, Unpaid Drawings and/or Unreimbursed Payments so that, after giving effect to such purchases by all RL Lenders which are in such position, each RL Lender shall have the same credit exposure (with respect to Revolving Loans, Unpaid Drawings and Unreimbursed Payments), as a percentage of its Revolving Loan Commitment (before giving effect to any termination or reduction thereof at or prior to the occurrence of the respective Sharing Event), as each other RL Lender. Any payments made after the date of the respective Sharing Event pursuant to the preceding sentence shall be required to be accompanied by payments of interest (which shall be distributed by the Administrative Agent to the respective Lender or Lenders entitled to receive the respective cash payments) at the greater of the Federal Funds Rate or such rate as may be determined by the Administrative Agent in accordance with banking industry practice on interbank compensation. The foregoing purchases shall be accomplished through purchases and sales of participations in the relevant obligations as required above, and each Lender hereby agrees, at the request of the Administrative Agent, to enter into customary participation agreements approved by the Administrative Agent to effect the foregoing. All purchases of sales of participating interests pursuant to this Section 1.14(d) shall be made in Dollars. Promptly following the occurrence of a Sharing Event, the Administrative Agent shall notify each RL Lender and shall specify the amount of Dollars required from each RL Lender to effect the purchases and sales by the various RL Lenders of participating interests in the amounts required above (together with accrued interest with respect to the period for the most recent payment date through the date of the Sharing Event plus any additional amounts payable by the Borrowers pursuant to Section 4.04 in respect of such accrued and unpaid interest). Promptly upon receipt of such request, each RL Lender required to purchase participations as specified above shall deliver to the Administrative Agent (in immediately available funds) Dollars in the amounts specified by the Administrative Agent. The Administrative Agent shall promptly deliver the amounts so received to the various RL Lenders who are selling participations in such amounts as are needed to effect the purchases of participations as provided above. Promptly following receipt thereof, each RL Lender which had sold participations as provided above (through the Administrative Agent) will deliver to each RL Lender (through the Administrative Agent) which so purchased a participating interest in its -27- Loans, Unpaid Drawings or Unreimbursed Payments a participation certificate dated the date of such purchase and in such amounts. (d) In the event that upon the occurrence of a Sharing Event any Letter of Credit shall be outstanding and undrawn in whole or in part, or there shall exist any Bank Guaranty Outstandings representing credit exposure for events which have not then occurred, each RL Lender shall on the date of the occurrence of such Sharing Event, and after giving effect to the purchases and sales of participations on such date pursuant to preceding Section 1.14(c), but before giving effect to the purchases and sales of participations on such date pursuant to Section 1.14(e), promptly pay over to the Administrative Agent, in immediately available funds in the currency in which such Letter of Credit is, or Bank Guaranty Outstandings are, denominated, an amount equal to such RL Lender's RL Percentage of such undrawn face amount or Bank Guaranty Outstandings, as applicable, together with interest thereon (denominated in the relevant currency) from the date of the Sharing Event to the date on which such amount shall be paid to the Administrative Agent at a rate per annum equal to that rate determined by the Administrative Agent in accordance with banking industry rules or practice on interbank compensation. The Administrative Agent shall establish a separate account or accounts for each RL Lender in an amount equal to the amount received from such Lender pursuant to the preceding sentence. The Administrative Agent shall have sole dominion and control over each such account (each, a "Special Reserve Account"), and the amounts deposited in each Special Reserve Account shall be held in such Special Reserve Account until withdrawn as provided in clause (f), (g) or (h) below in this Section 1.14. The Administrative Agent shall maintain records enabling it to determine the amounts paid over to it and deposited in the Special Reserve Accounts. As amounts are drawn under outstanding Letters of Credit or Bank Guaranties in respect of which amounts have been paid into the various Special Reserve Accounts pursuant to this Section 1.14(d), amounts shall be drawn ratably from the Special Reserve Accounts of the various RL Lenders (in accordance with their RL Percentages) to pay such amounts. The amounts paid to the Administrative Agent pursuant to this clause (d) shall be held as a reserve against the Letter of Credit Outstandings and/or Bank Guaranty Outstandings, as the case may be, shall not constitute Loans or extensions of credit to either Borrower and shall not give rise to any obligation on the part of either Borrower to pay interest to any Lender, it being agreed that the Borrowers' reimbursement obligations (x) in respect of Letters of Credit shall arise only at such times as drawings or payments are made thereunder as provided in Section 2A.04 and (y) in respect of Bank Guaranties shall arise only at such times as drawings or payments are made thereunder as provided in Section 2B.04. (e) Upon the occurrence of a Sharing Event, but after giving effect to the actions required to be taken pursuant to preceding clause (a) through (d) (although any failure by any Lender to take the actions required of it pursuant to said clauses shall not prevent the exchanges required hereby, but the respective 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 following clause (i) of this Section 1.14), the Lenders shall automatically and without further action be deemed to have exchanged interests in the respective Tranches of Loans (including, in the case of the Total Revolving Loan Commitment, interests in each outstanding Letter of Credit, each Unpaid Drawing, each Bank Guaranty and each Unreimbursed Payment) such that, in lieu of the interests of each Lender in each Tranche, such Lender shall hold an interest in all Tranches at such time -28- (including, (x) in the case of the Total Revolving Loan Commitment, an interest in each outstanding Letter of Credit, each Unpaid Drawing, each Bank Guaranty and each Unreimbursed Payment and (y) each Special Reserve Account established pursuant to Section 1.14(d) and all amounts deposited therein from time to time or to be returned to the Lenders in accordance with the provisions of Section 1.14(g)), whether or not such Lender shall previously have participated therein, equal to such Lender's Exchange Percentage thereof. The foregoing exchanges shall be accomplished automatically pursuant to this clause (e) through purchases and sales of participations in the various Tranches as required hereby, although at the request of the Administrative Agent each Lender hereby agrees to enter into customary participation agreements approved by the Administrative Agent to evidence same. All purchases and sales of participating interests pursuant to this Section 1.14(e) shall be made in Dollars. At the request of the Administrative Agent, each Lender which has sold participations in any of its Tranches and/or Special Reserve Accounts as provided above (through the Administrative Agent) will deliver to each Lender (through the Administrative Agent) which has so purchased a participating interest therein a participation certificate in the appropriate amount as determined in conjunction with the Administrative Agent. It is understood that the amount of 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. (f) In the event that after the occurrence of a Sharing Event any drawing or payment shall be made in respect of a Letter of Credit or Bank Guaranty, the Administrative Agent shall, at the request of the respective Issuing Lender or Bank Guaranty Issuer, withdraw from the Special Reserve Account of each of the Lenders (in accordance with each Lender's RL Percentage) any amounts, up to the amount of such drawing or payment, deposited in the respective Special Reserve Account and remaining on deposit and deliver such amounts to such Issuing Lender or Bank Guaranty Issuer, as the case may be, in satisfaction of the reimbursement obligations of the various RL Lenders under Section 2A.04(c) or 2B.04(c), as the case may be (but not of the applicable Borrower under Section 2A.05(a) or Section 2B.05(a), as the case may be). 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 Bank Guaranty as provided in Section 1.14(d), the respective Issuing Lender or Bank Guaranty Issuer shall, in the event of a drawing or payment thereunder, have a claim against such Lender to the same extent as if such Lender had defaulted on its obligations under Section 2A.04(c) or 2B.04(c), as the case may be, but shall have no claim against any other Lender, notwithstanding the exchange of interests in the applicable Borrower's reimbursement obligations pursuant to Section 1.14(e). Each other Lender shall have a claim against such defaulting Lender for any damages sustained by it as a result of such default. (g) In the event that after the occurrence of a Sharing Event any Letter of Credit or Bank Guaranty shall terminate or expire undrawn or unpaid upon, then, if and so long as the Administrative Agent determines (in its reasonable discretion) that adequate funds remain on deposit in the Special Reserve Accounts of the various RL Lenders to fund (without giving effect to the purchases of participation pursuant to Section 1.14(e)) all remaining drawings or payments which could come due in respect of outstanding Letters of Credit and/or Bank Guaranties, the Administrative Agent shall withdraw from the Special Reserve Account of each Lender the amount remaining on deposit therein in respect of such Letter of Credit or Bank Guaranty (or in any case, such lesser amount as the Administrative Agent reasonably determines -29- can be distributed without causing the amount on deposit from the various RL Lenders to be less than the remaining exposure on outstanding Letters of Credit and Bank Guaranties) and distribute such amount to such Lender, provided that, if such amount is not denominated in Dollars, the Administrative Agent shall distribute to each such Lender the Dollar Equivalent of such amount. All amounts received by any Lender pursuant to this clause (g) shall, to the extent it has sold participations therein in accordance with the requirements of Section 1.14(e), be distributed by it to the various participants therein in accordance with their participating interests. (h) Pending the withdrawal of any amounts from its Special Reserve Account as contemplated above in this Section 1.14, the Administrative Agent may, and shall, at the direction of the Required Lenders and subject to such rules as the Administrative Agent may prescribe for the avoidance of inconvenience, invest such amounts in Cash Equivalents. (i) 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 hereunder in accordance with the provisions hereof. Absent manifest error, all determinations by the Administrative Agent hereunder shall be binding on the Borrowers and each of the Lenders. The Administrative Agent shall have no liability to either Borrower or Lender hereunder 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). (j) Upon, and after, the occurrence of a Sharing Event (i) no further Credit Events shall be made or occur, (ii) all amounts from time to time accruing with respect to, and all amounts from time to time payable on account of, Euro Denominated Loans (including, without limitation, any interest and other amounts which were accrued but unpaid on the date of such Sharing Event) shall be payable in Dollars (taking the Dollar Equivalents of all such amounts on the date of the occurrence of the respective Sharing Event, with all calculations for periods after the Sharing Event being made as if the respective such Loan had originally been made in Dollars) and shall be distributed by the Administrative Agent for the account of the Lenders which made such Loans or are participating therein and (iii) all Revolving Loan Commitments of all the RL Lenders 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 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. (k) 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 -30- 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 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. (l) 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. (m) 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, Holdings, either Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of an Event of Default, (iii) any adverse change in the condition (financial or otherwise) of Holdings, either Borrower or any other Person, (iv) any breach of this Agreement by Holdings, either Borrower, any Lender or any other Person, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. (n) Notwithstanding anything to the contrary contained elsewhere in this Agreement, upon any purchase of participations as required above, (i) each Lender which has purchased such participations shall be entitled to receive from the relevant Borrower any increased costs and indemnities (including, without limitation, pursuant to Sections 1.11, 1.12, 2A.06, 2B.06 and 4.04) directly from such Borrower to the same extent as if it 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. -31- SECTION 2. 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 Initial Borrowing Date and prior to the fifth Business Day (or the 30th day in the case of Trade Letters of Credit) preceding the Revolving Loan 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 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. Each Letter of Credit shall constitute either (x) a Multicurrency Facility Letter of Credit, in which case such Letter of Credit shall be deemed to constitute a utilization of the Multicurrency Facility Revolving Loan 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 Multicurrency Facility RL Lenders in accordance with their respective Multicurrency Facility RL Percentages or (y) a Dollar Facility Letter of Credit, in which case such Letter of Credit shall be deemed to constitute a utilization of the Dollar Facility Revolving Loan 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 Dollar Facility RL Lenders in accordance with their respective Dollar Facility RL Percentages. All Multicurrency Facility Letters of Credit shall be denominated in Dollars or Euros and shall be issued for the account of the Bermuda Borrower. All Dollar Facility Letters of Credit shall be denominated in Dollars and shall be issued for the account of the U.S. Borrower or the Bermuda Borrower. Each Dollar Facility Letter of Credit shall constitute either a U.S. Borrower Dollar Facility Letter of Credit or a Bermuda Borrower Dollar Facility Letter of Credit. The Bermuda Borrower shall have no liability with respect to any U.S. Borrower Dollar Facility 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 that it will, at any time and from time to time on and after the Initial Borrowing Date and prior to the fifth Business Day (or the 30th day in the case of Trade Letters of Credit) preceding the Revolving Loan 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 -32- 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 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 date hereof, or any unreimbursed loss, cost or expense which was not applicable, in effect or known to such Issuing Lender as of the date hereof and which such Issuing Lender in good faith deems material to it; (ii) such Issuing Lender shall have received written notice from any Credit Agreement Party or the Required Lenders prior to the issuance of such Letter of Credit of the type described in clause (viii) of Section 2A.01(c) or the last sentence of Section 2A.03(b); or (iii) a Lender Default exists with respect to any RL Lender, unless the Issuing Lender has entered into arrangements satisfactory to it and the respective Account Party to eliminate such Issuing Lender's risk with respect to the Lender which is the subject of the Lender Default, including by cash collateralizing (in Dollars or Euros, as appropriate) such Lender's relevant Dollar Facility RL Percentage or Multicurrency Facility RL Percentage, as the case may be, of the Dollar Facility Letter of Credit Outstandings or Multicurrency Facility Letter of Credit Outstandings, as the case may be. (c) Notwithstanding the foregoing, (i) no Multicurrency Facility Letter of Credit shall be issued the Stated Amount of which, when added to the sum of (x) the Multicurrency Facility Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and prior to the issuance of, the respective Multicurrency Facility Letter of Credit) at such time and (y) the Bank Guaranty Outstandings (exclusive of Unreimbursed Payments which are repaid on the date of, and prior to the issuance of, the respective Bank Guaranty) at such time, would exceed $100,000,000, (ii) no Dollar Facility Letter of Credit shall be issued the Stated Amount of which, when added to the Dollar Facility Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and prior to the issuance of, the respective Dollar Facility Letter of Credit) at such time, would exceed $75,000,000, (iii) no Multicurrency Facility Letter of Credit shall be issued at any time when the Aggregate Multicurrency Facility RL Exposure exceeds (or would after giving effect to such issuance exceed) the Total Multicurrency Facility Revolving Loan Commitment at such time, (iv) no Dollar Facility Letter of Credit shall be issued at any time when the Aggregate Dollar Facility RL Exposure exceeds (or would after giving effect to such issuance exceed) the Total Dollar Facility Revolving Loan Commitment at such time, (v) no Bermuda Borrower Dollar Facility Letter of Credit shall be issued at any time when the Aggregate Bermuda Borrower Dollar Facility RL Exposure exceeds (or would after giving effect to such issuance exceed) $50,000,000, (vi) (x) each Standby Letter of Credit shall by its terms terminate on or before the -33- 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 Revolving Loan Maturity Date, on terms acceptable to the Issuing Lender thereof) 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, (vii) (x) no Standby Letter of Credit shall have an expiry date occurring later than the fifth Business Day preceding the Revolving Loan Maturity Date and (y) no Trade Letter of Credit shall have an expiry date occurring later than 30 days prior to the Revolving Loan Maturity Date, (viii) (x) each Multicurrency Facility Letter of Credit shall be denominated in Euros or Dollars and (y) each Dollar Facility Letter of Credit shall be denominated in Dollars and (ix) no Issuing Lender will issue any Letter of Credit after it has received written notice from any Credit Agreement Party 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 pursuant to certain existing letter of credit agreements and outstanding on the 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 Euros), (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 (x) if denominated in Euros, constitute a "Multicurrency Facility Letter of Credit" for all purposes of this Agreement, issued, for purposes of Section 2A.04(a), on the Initial Borrowing Date and (y) if denominated in U.S. Dollars, constitute a "U.S. Borrower Dollar Facility Letter of Credit"(if issued for the account of the U.S. Borrower) or a "Bermuda Borrower Dollar Facility Letter of Credit" (if issued for the account of the Bermuda Borrower) for all purposes of this Agreement, issued, for purposes of Section 2A.04(a), on the Initial Borrowing Date. Any Lender hereunder 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 and (y) in the case of a Euro Denominated Letter of Credit, (euro)250,000, 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 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 whether the requested Letter of Credit shall constitute a Multicurrency Facility Letter of Credit, a U.S. Borrower Dollar Facility Letter of Credit or a Bermuda Borrower Dollar Facility Letter of -34- Credit and the Available Currency in which the requested Letter of Credit is to be denominated. 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 U.S. Borrower or the Bermuda Borrower, as the case may be, 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 5 or 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, such Issuing Lender shall be deemed to have sold and transferred to (i) in the case of a Multicurrency Facility Letter of Credit, each Multicurrency Facility RL Lender and (ii) in the case of a Dollar Facility Letter of Credit, each Dollar Facility RL Lender (each such Lender with respect to any Letter of Credit, in its capacity under this Section 2A.04, a "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, in a percentage equal to (x) in the case of a Multicurrency Facility Letter of Credit, such L/C Participant's Multicurrency Facility RL Percentage or (y) in the case of a Dollar Facility Letter of Credit, such L/C Participant's Dollar Facility RL Percentage, in such Multicurrency Facility Letter of Credit or Dollar Facility Letter of Credit, as the case may be, each Drawing made thereunder and the obligations of the respective Borrower under this Agreement with respect thereto (although Letter of Credit Fees shall be payable directly to the Administrative Agent for the account of the Multicurrency Facility RL Lenders or Dollar Facility RL Lenders, as the case may be, as provided in Section 3.01(b) and the L/C Participants shall have no right to receive any portion of any Facing Fees with respect to any such Letters of Credit) and any security therefor or guaranty pertaining thereto. Upon any change in (x) the Multicurrency Facility Revolving Loan Commitments and, as a result thereof the Multicurrency Facility RL Percentages, of the Multicurrency Facility RL Lenders pursuant to Section 1.13 or 13.04, it is hereby agreed that, with respect to all outstanding Multicurrency Facility 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 Multicurrency Facility RL Percentages of the Multicurrency Facility RL Lenders and (y) the Dollar Facility Revolving Loan Commitments and, as a result thereof the Dollar Facility RL Percentages, of the Dollar Facility RL Lenders pursuant to Sections 1.13 or 13.04, it is hereby agreed that with respect to all outstanding Dollar Facility 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 Dollar Facility RL Percentages of the Dollar Facility RL Lenders. With respect to each Letter of Credit from time to time outstanding, the percentage participations therein of the various Multicurrency Facility RL Lenders (in the case of a Multicurrency Facility Letter of Credit) or Dollar Facility RL Lenders (in the case of a Dollar Facility Letter of Credit) calculated as provided above in this Section 2A.04(a) are herein called the "L/C Participation Percentages" of the various Multicurrency Facility RL Lenders or Dollar -35- Facility RL Lenders, as the case may be, in such Letters of Credit. All calculations of the L/C Participation Percentages shall be made from time to time by the Administrative Agent, which calculations shall be conclusive absent manifest error. In addition to the adjustments contemplated above, upon the occurrence of a Sharing Event, in accordance with the provisions of Section 1.14(d), the "L/C Participation Percentages" of the RL Lenders shall be adjusted, so that each RL Lender shall participate in each outstanding Letter of Credit (whether a Multicurrency Facility Letter of Credit or a Dollar Facility Letter of Credit) in accordance with its RL Percentage, in each case as more fully described in Section 1.14(d). In any instance described in the immediately preceding sentence, each RL Lender shall be a L/C Participant with respect to each Letter of Credit and its L/C Participation Percentage in each Letter of Credit shall be determined by the Administrative Agent in accordance with the relevant provisions of Section 1.14(d). 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 RL Lenders in their participations in outstanding Letters of Credit, in each case in accordance with, and subject to the provisions of, Section 1.14. (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), such Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each L/C Participant therein (i.e., (A) if no Sharing Event has occurred, either (x) the Multicurrency Facility RL Lenders in the case of a Multicurrency Facility Letter of Credit or (y) the Dollar Facility RL Lenders in the case of a Dollar Facility Letter of Credit or (B) if a Sharing Event has occurred, each RL Lender) of such failure, and each L/C Participant therein shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Lender the amount of such L/C Participant's L/C Participation Percentage (as relates to the respective Letter of Credit) of the respective Unpaid Drawing (with the amount thereof and the currency in which same is owing to be calculated in accordance with the provisions of Section 2A.05(a)) in Dollars (or, to the extent the respective Unpaid Drawing is, in accordance with Section 2A.05(a), to be reimbursed by the respective Account Party in Euros, Euros) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any L/C Participant required to fund an Unpaid Drawing under a Letter of Credit, such L/C Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Issuing Lender, in Dollars (or in Euros to the extent the respective Unpaid Drawing is required to be paid by the respective Account Party in Euros, as the case may be, pursuant to the provisions of Section 2A.05(a)), such L/C Participant's L/C Participation Percentage (as relates to the respective Letter of Credit) of the amount of such payment on such -36- Business Day in same day funds. If and to the extent that, for any reason, such L/C Participant shall not have made its L/C Participation Percentage of the amount of such payment available to the Administrative Agent for the account of the respective Issuing Lender, such L/C Participant agrees to pay to the Administrative Agent for the account of such Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from the date the respective Unpaid Drawing occurred until the date such amount is paid to the Administrative Agent for the account of such Issuing Lender at the overnight Federal Funds Rate (or, in the case of amounts owed in Euros, at the Overnight Euro Rate), provided that if any L/C Participant does not make available to the Administrative Agent any amounts required to be made available by it as described above within 2 Business Days after the respective L/C Participant has been notified by the Administrative Agent or the respective Issuing Lender to make such amounts available, then the respective L/C Participant shall pay interest on the amounts demanded of it at the same rates payable from time to time by the respective Account Party on the respective Unpaid Drawings pursuant to Section 2A.05(a). The failure of any L/C Participant to make available to the Administrative Agent for the account of the respective Issuing Lender its relevant L/C Participation Percentage of any payment under any Letter of Credit issued by it shall not relieve any other L/C Participant in the respective Letter of Credit of its obligation hereunder to make available to the Administrative Agent for the account of such Issuing Lender its relevant L/C Participation Percentage of any such Letter of Credit on the date required, as specified above, but no L/C Participant shall be responsible for the failure of any other L/C Participant to make available to the Administrative Agent for the account of such Issuing Lender such other L/C Participant's relevant L/C Participation Percentage of any such payment. (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 pursuant to clause (c) above, such Issuing Lender shall pay to the Administrative Agent and the Administrative Agent shall promptly pay each L/C Participant which has paid its relevant L/C Participation Percentage thereof, in Dollars (or in Euros in the case of payments to be made in Euros pursuant to Section 2A.05(a)) and in same day funds, 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. (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, promptly on the first Business Day of each week, by facsimile transmis- -37- sion, 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, set-off 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). 2A.05 Agreement to Repay Letter of Credit Drawings. (a) The U.S. Borrower hereby agrees (in the case of U.S. Borrower Dollar Facility Letters of Credit), and the Bermuda Borrower hereby agrees (in the case of Multicurrency Facility Letters of Credit and Bermuda Borrower Dollar Facility Letters of Credit), to reimburse the respective Issuing Lender, by making payment in Dollars (in the case of all Dollar Denominated Letters of Credit or, after a Sharing Event, all Letters of Credit) or Euros (in the case of Euro Denominated Letters of Credit at any time prior to a Sharing Event) to the Administrative Agent in immediately available funds -38- 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 Euro Denominated Letter of Credit which is unpaid on the date of the occurrence of a Sharing Event, or which payments or disbursements are made thereafter, taking the Dollar Equivalent of the amount of the respective payment or disbursement made in Euros as such Dollar Equivalent is determined on the first date upon which the respective Sharing Event occurs or, if later, 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 Borrower of such payment or disbursement, 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 U.S. Borrower or the Bermuda Borrower, as the case may be, therefor at a rate per annum which shall be (x) in the case of Dollar Denominated Letters of Credit and other amounts owing in Dollars after the occurrence of a Sharing Event, the Base Rate in effect from time to time plus the Applicable Margin for Multicurrency Facility Revolving Loans (in the case of Multicurrency Facility Letters of Credit) or Dollar Facility Revolving Loans (in the case of Dollar Facility Letters of Credit) in each case maintained as Base Rate Loans, as in effect from time to time and (y) in the case of Euro Denominated Letters of Credit for periods occurring prior to the occurrence of a Sharing Event, the Overnight Euro Rate in effect from time to time plus the Applicable Margin for Euro Denominated Revolving Loans as in effect from time to time plus any Mandatory Costs, provided, however, to the extent such amounts are not reimbursed prior to 1:00 P.M. (New York time) on the third Business Day following notice to the respective Account Party by the Administrative Agent or the respective Issuing Lender of such payment or disbursement, interest shall thereafter accrue on the amounts so paid or disbursed by such Issuing Lender (and until reimbursed by the respective Account Party) at a rate per annum which shall be (x) in the case of Dollar Denominated Letters of Credit and other amounts owing in Dollars after the occurrence of a Sharing Event, the Base Rate in effect from time to time plus the Applicable Margin for Multicurrency Facility Revolving Loans (in the case of Multicurrency Facility Letters of Credit) or Dollar Facility Revolving Loans (in the case of Dollar Facility Letters of Credit) in each case maintained as Base Rate Loans, as in effect from time to time plus 2% and (y) in the case of Euro Denominated Letters of Credit for periods occurring prior to the occurrence of a Sharing Event, the Overnight Euro Rate in effect from time to time plus the Applicable Margin for Euro Denominated Revolving Loans as in effect from time to time plus any Mandatory Costs plus 2%, in each such case, with interest to be payable on demand, provided further, that it is understood and agreed, however, that the notices referred to above in this clause (a) and in the immediately preceding proviso shall not be required to be given if a Default or an Event of Default under Section 10.05 shall have occurred and be continuing (in which case the Unpaid Drawings shall be due and payable immediately without presentment, demand, protest or notice of any kind (all of which are hereby waived by each Credit Party) and shall bear interest at the rate provided in the foregoing proviso on and after the third Business Day following the respective Drawing). The respective Issuing Lender shall give the respective Account Party prompt notice of each Drawing under any Letter of Credit, -39- 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. (b) The obligations of the U.S. Borrower (with respect to U.S. Borrower Dollar Facility Letters of Credit) and the obligations of the Bermuda Borrower (with respect to Multicurrency Facility letters of Credit and Bermuda Borrower Dollar Facility 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 nonapplication 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 substantially 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 Effective Date, any Issuing Lender or any L/C Participant determines in good faith that the adoption or effectiveness after the Effective Date of any applicable law, rule or regulation, order, guideline or request or any change therein, or any change after the 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 any Issuing Lender or any L/C Participant any other conditions directly or indirectly affecting this Agreement, 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 such Issuing Lender or such L/C Participant of issuing, maintaining or participating in any Letter of Credit, or to reduce the amount of any sum received or receivable by such Issuing Lender or such L/C Participant hereunder or reduce the rate of return on its capital with respect to Letters of Credit, then, upon written demand to the U.S. Borrower or the Bermuda Borrower, as the case may be, by such Issuing Lender or such L/C Participant (a copy of which notice shall be sent by 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 U.S. Borrower or the Bermuda Borrower, as the case may be, shall pay to such Issuing Lender or such L/C Participant for such increased cost or reduction. A certificate -40- submitted to the relevant Borrower by such Issuing Lender or such L/C Participant, as the case may be (a copy of which certificate shall be sent by 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 such Issuing Lender or such L/C Participant as aforesaid shall be final and conclusive and binding on such Borrower absent manifest error, although the failure to deliver any such certificate shall not release or diminish such Borrower'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 Initial Borrowing Date and prior to the tenth Business Day preceding the Revolving Loan Maturity Date, to issue, for the account of the Bermuda Borrower 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 Bermuda Borrower or any other Foreign Subsidiary of the U.S. Borrower, 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 Bermuda Borrower 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 Multicurrency Facility Revolving Loan 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 Multicurrency Facility RL Lenders in accordance with their respective Multicurrency Facility RL Percentages. All Bank Guaranties shall be denominated in Dollars or Euros and shall expressly provide the maximum amount that may be paid thereunder. (b) Subject to and upon the terms and conditions set forth herein, each Bank Guaranty Issuer hereby agrees that it will, at any time and from time to time on and after the Initial Borrowing Date and prior to the tenth Business Day preceding the Revolving Loan Maturity Date, following its receipt of the respective Bank Guaranty Request, issue for the account of the Bermuda Borrower 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 -41- 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 date hereof, or any unreimbursed loss, cost or expense which was not applicable, in effect or known to such Bank Guaranty Issuer as of the date hereof and which such Bank Guaranty Issuer in good faith deems material to it; (ii) such Bank Guaranty Issuer shall have received written notice from any Credit Agreement Party or the Required Lenders prior to the issuance of such Bank Guaranty of the type described in clause (viii) of Section 2B.01(c) or the last sentence of Section 2B.03(b); or (iii) a Lender Default exists with respect to any RL Lender, unless the Bank Guaranty Issuer has entered into arrangements satisfactory to it and the Bermuda Borrower to eliminate such Bank Guaranty Issuer's risk with respect to the Lender which is the subject of the Lender Default, including by cash collateralizing (in Dollars or Euros, as appropriate) such Lender's Multicurrency Facility RL Percentage of the Bank Guaranty Outstandings. (c) Notwithstanding the foregoing, (i) no Bank Guaranty shall be issued the Face Amount of which, when added to the sum of (x) the Bank Guaranty Outstandings (exclusive of Unreimbursed Payments which are repaid on the date of, and prior to the issuance of, the respective Bank Guaranty) at such time and (y) the Multicurrency Facility Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and prior to the issuance of, the respective Multicurrency Facility Bank Guaranty) at such time, would exceed $100,000,000, (ii) no Bank Guaranty shall be issued at any time when the Aggregate Multicurrency Facility RL Exposure exceeds (or would after giving effect to such issuance exceed) the Total Multicurrency Facility Revolving Loan Commitment at such time, (iii) 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 Revolving Loan Maturity Date, on terms acceptable to the Bank Guaranty 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 Bermuda Borrower reasonably determines that the intended beneficiary of such Bank Guaranty will not permit same to terminate as otherwise provided above, (iv) no Bank Guaranty shall have an expiry date occurring later than the tenth Business Day preceding the Revolving Loan Maturity Date, provided, however, that a Bank Guaranty shall not be required to have an expiry date as otherwise required above if the Bermuda Borrower reasonably determines that the beneficiary of such Bank Guaranty will not accept a Bank Guaranty with an expiry date, (v) each Bank Guaranty shall be denominated in Euros or Dollars and (vi) no Bank Guaranty Issuer will issue any Bank Guaranty after it has received written notice from any Credit Agreement Party 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. -42- (d) Part B of Schedule XI hereto contains a description of certain bank guaranties issued pursuant to certain existing bank guaranty agreements and outstanding on the 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 Euros), (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 a "Bank Guaranty" for all purposes of this Agreement, issued, for purposes of Section 2B.04(a), on the Initial Borrowing Date. Any Lender hereunder (and any of such Lender's Affiliates and/or branches) which has issued an Existing 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 and (y) in the case of a Euro Denominated Bank Guaranty, (euro)250,000, or in each case such lesser amount as is acceptable to the respective Bank Guaranty Issuer. 2B.03 Bank Guaranty Requests. (a) Whenever the Bermuda Borrower desires that a Bank Guaranty be issued for its account, the Bermuda Borrower shall give the Administrative Agent (at the appropriate Notice Office) and the respective Bank Guaranty Issuer at least 3 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 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 Bermuda Borrower 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 5 or 6, as the case may 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 Bermuda Borrower 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, such Bank Guaranty Issuer shall be deemed to have sold and transferred to each Multicurrency Facility RL 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, in a percentage equal to such B/G Participant's Multicurrency Facility RL Percentage, in such Bank Guaranty, each Bank Guaranty Payment made thereunder and the obligations of the Bermuda -43- Borrower under this Agreement with respect thereto (although Bank Guaranty Fees shall be payable directly to the Administrative Agent for the account of the Multicurrency Facility RL Lenders as provided in Section 3.01(e) and the B/G Participants shall have no right to receive any portion of any administrative fees with respect to any such Bank Guaranties) and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Facility Revolving Loan Commitments and, as a result thereof the Multicurrency Facility RL Percentages, of the Multicurrency Facility RL 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 Multicurrency Facility RL Percentages of the Multicurrency Facility RL Lenders. With respect to each Bank Guaranty from time to time outstanding, the percentage participations therein of the various Multicurrency Facility RL Lenders calculated as provided above in this Section 2B.04(a) are herein called the "B/G Participation Percentages" of the various Multicurrency Facility RL Lenders in such Bank Guaranties. All calculations of the B/G Participation Percentages shall be made from time to time by the Administrative Agent, which calculations shall be conclusive absent manifest error. In addition to the adjustments contemplated above, upon the occurrence of a Sharing Event, in accordance with the provisions of Section 1.14(d), the "B/G Participation Percentages" of the RL Lenders shall be adjusted, so that each RL Lender shall participate in each outstanding Bank Guaranty in accordance with its RL Percentage, in each case as more fully described in Section 1.14(d). In any instance described in the immediately preceding sentence, each RL Lender shall be a B/G Participant with respect to each Bank Guaranty and its B/G Participation Percentage in each Bank Guaranty shall be determined by the Administrative Agent in accordance with the relevant provisions of Section 1.14(d). 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 RL 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 Bermuda Borrower 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 Bermuda Borrower shall not have reimbursed such amount in full to such Bank Guaranty Issuer pursuant to Section 2B.05(a), such Bank Guaranty Issuer shall promptly notify the Administrative Agent, which shall promptly notify each B/G Participant therein (i.e., (A) if no Sharing Event has occurred, the Multicurrency Facility RL Lenders or (B) a Sharing Event has occurred, each RL Lender) of such failure, and each B/G Participant therein shall promptly and unconditionally pay to the Administrative Agent for the account of such Bank Guaranty Issuer the amount of such B/G Participant's B/G Participation Percentage (as relates to the respective Bank Guaranty) of the respective -44- Unreimbursed Payment (with the amount thereof and the currency in which same is owing to be calculated in accordance with the provisions of Section 2B.05(a)) in Dollars (or, to the extent the respective Unreimbursed Payment is, in accordance with Section 2B.05(a), to be reimbursed by the Bermuda Borrower in Euros, Euros) and in same day funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any Business Day, any B/G Participant required to fund an Unreimbursed Payment under a Bank Guaranty, such B/G Participant shall make available to the Administrative Agent at the Payment Office for the account of the respective Bank Guaranty Issuer, in Dollars (or in Euros to the extent the respective Unreimbursed Payment is required to be paid by the Bermuda Borrower in Euros, as the case may be, pursuant to the provisions of Section 2B.05(a)), such B/G Participant's B/G Participation Percentage (as relates to the respective Bank Guaranty) of the amount of such payment on such Business Day in same day funds. If and to the extent that, for any reason, such B/G Participant shall not have made its B/G Participation Percentage of the amount of such payment available to the Administrative Agent for the account of the respective Bank Guaranty Issuer, such B/G Participant agrees to pay to the Administrative Agent for the account of such Bank Guaranty Issuer, forthwith on demand such amount, together with interest thereon, for each day from the date the respective Unreimbursed Payment occurred until the date such amount is paid to the Administrative Agent for the account of such Bank Guaranty Issuer at the overnight Federal Funds Rate (or, in the case of amounts owed in Euros, at the Overnight Euro Rate), provided that if any B/G Participant does not make available to the Administrative Agent any amounts required to be made available by it as described above within 2 Business Days after the respective B/G Participant has been notified by the Administrative Agent or the respective Bank Guaranty Issuer to make such amounts available, then the respective B/G Participant shall pay interest on the amounts demanded of it at the same rates payable from time to time by the respective Account Party on the respective Unreimbursed Payments pursuant to Section 2B.05(a). The failure of any B/G Participant to make available to the Administrative Agent for the account of the respective Bank Guaranty Issuer its relevant B/G Participation Percentage of any payment under any Bank Guaranty issued by it shall not relieve any other B/G Participant in the respective Bank Guaranty of its obligation hereunder to make available to the Administrative Agent for the account of such Bank Guaranty Issuer its B/G Participation Percentage of any such Bank Guaranty on the date required, as specified above, but no B/G Participant shall be responsible for the failure of any other B/G Participant to make available to the Administrative Agent for the account of such Bank Guaranty Issuer such other B/G Participant's B/G Participation Percentage of any such payment. (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 pursuant to clause (c) above, such Bank Guaranty Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay each B/G Participant which has paid its B/G Participation Percentage thereof, in Dollars (or in Euros in the case of payments to be made in Euros pursuant to Section 2B.05(a)) and in same day funds, 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. -45- (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 Bermuda Borrower 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. Each Bank Guaranty Issuer shall deliver to the Administrative Agent, 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. (f) 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, set-off 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 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 -46- 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 Bermuda Borrower hereby agrees to reimburse the respective Bank Guaranty Issuer, by making payment in Dollars (in the case of all Dollar Denominated Bank Guaranties or, after a Sharing Event, all Bank Guaranties) or Euros (in the case of Euro Denominated Bank Guaranties at any time prior to a Sharing Event) 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 Bermuda Borrower and such Bank Guaranty Issuer), for any payment or disbursement (in the case of any such payment or disbursement under any Euro Denominated Bank Guaranty which is unpaid on the date of the occurrence of a Sharing Event, or which payments or disbursements are made thereafter, taking the Dollar Equivalent of the amount of the respective payment or disbursement made in Euros as such Dollar Equivalent is determined on the first date upon which the respective Sharing Event occurs or, if later, 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 Borrower of such payment or disbursement, 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 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 Bermuda Borrower therefor at a rate per annum which shall be (x) in the case of Euro Denominated Bank Guaranties for periods occurring prior to the occurrence of a Sharing Event, the Overnight Euro Rate in effect from time to time plus the Applicable Margin for Euro Denominated Revolving Loans as in effect from time to time plus any Mandatory Costs and (y) in the case of amounts owing in Dollars after the occurrence of a Sharing Event, the Base Rate in effect from time to time plus the Applicable Margin for Multicurrency Facility Revolving Loans maintained as Base Rate Loans, in each case 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 notice to the Bermuda Borrower by the Administrative Agent or the respective Bank Guaranty Issuer of such payment or disbursement, interest shall thereafter accrue on the amounts so paid or disbursed by such Bank Guaranty Issuer (and until reimbursed by the Bermuda Borrower) at a rate per annum which shall be (x) in the case of Euro Denominated Bank Guaranties for periods occurring prior to the occurrence of a Sharing Event, the Overnight Euro Rate in effect from time to time plus the Applicable Margin for Euro Denominated Revolving Loans as in effect from time to time plus any Mandatory Costs plus 2% and (y) in the case of amounts owing in Dollars after the occurrence of a Sharing Event, the Base Rate in effect from time to time plus the Applicable Margin for Multicurrency Facility Revolving Loans maintained as Base Rate Loans as in effect from time to time plus 2%, in each such case, with interest to be payable on demand, provided further, that it is understood and agreed, however, that the notices referred to above in this clause (a) and in the immediately preceding proviso shall not be required to be given if a Default or an Event of Default under Section 10.05 shall have occurred and be continuing (in which case the Unreimbursed Payments shall be due and payable immediately -47- without presentment, demand, protest or notice of any kind (all of which are hereby waived by each Credit Party) and shall bear interest at the rate provided in the foregoing proviso on and after the third Business Day following the respective Bank Guaranty Payment). The respective Bank Guaranty Issuer shall give the Bermuda Borrower 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 Bermuda Borrower's obligations under this Agreement. (b) The obligations of the Bermuda Borrower 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 Bermuda Borrower 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 Bermuda Borrower 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 the Bermuda Borrower shall not 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 the Bermuda Borrower 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 Effective Date, any Bank Guaranty Issuer or any B/G Participant determines in good faith that the adoption or effectiveness after the Effective Date of any applicable law, rule or regulation, order, guideline or request or any change therein, or any change after the 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 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 any Bank Guaranty Issuer or any B/G Participant any other conditions directly or indirectly affecting this Agreement, 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 such Bank Guaranty Issuer or such B/G Participant of issuing, maintaining or participating in any Bank Guaranty, or to reduce the amount of any sum received or receivable by such Bank Guaranty Issuer or such B/G Participant hereunder or reduce the rate -48- of return on its capital with respect to Bank Guaranties, then, upon written demand to the Bermuda Borrower by such Bank Guaranty Issuer or such B/G Participant (a copy of which notice shall be sent by 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 Bermuda Borrower shall pay to such Bank Guaranty Issuer or such B/G Participant for such increased cost or reduction. A certificate submitted to the relevant Borrower by such Bank Guaranty Issuer or such B/G Participant, as the case may be (a copy of which certificate shall be sent by 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 such Bank Guaranty Issuer or such B/G Participant as aforesaid shall be final and conclusive and binding on the Bermuda Borrower absent manifest error, although the failure to deliver any such certificate shall not release or diminish such Borrower'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 Revolving Loan Maturity Date, the Bermuda Borrower shall either (i) terminate each Bank Guaranty 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 without an expiry date on terms satisfactory to such Bank Guaranty Issuer and the Administrative Agent, with the Bermuda Borrower 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 in respect of such Bank Guaranties. SECTION 3. Fees; Commitments. 3.01 Fees. (a) (x) The Bermuda Borrower agrees to pay to the Administrative Agent for distribution to each Non-Defaulting Lender with a Multicurrency Facility Revolving Loan Commitment a commitment commission, in Dollars, for the period from the Effective Date to but excluding the Revolving Loan Maturity Date (or such earlier date as the Total Multicurrency Facility Revolving Loan Commitment shall have been terminated), computed at a rate equal to the Applicable Multicurrency Facility Commitment Fee Percentage per annum on the daily average Unutilized Multicurrency Facility Revolving Loan Commitment of such Non-Defaulting Lender as in effect from time to time and (y) the Borrowers jointly and severally agree to pay to the Administrative Agent for distribution to each Non-Defaulting Lender with a Dollar Facility Revolving Loan Commitment a commitment commission, in Dollars, for the period from the Effective Date to but excluding the Revolving Loan Maturity Date (or such earlier date as the Total Dollar Facility Revolving Loan Commitment shall have been terminated), computed at a rate equal to the Applicable Dollar Facility Commitment Fee Percentage per annum on the daily average Unutilized Dollar Facility Revolving Loan Commitment of such Non-Defaulting Lender as in effect from time to time (with all commitment commissions payable as described in this clause (a) being herein referred to as "RL Commitment -49- Commission"). Accrued RL Commitment Commission shall be due and payable, in Dollars, quarterly in arrears on each Quarterly Payment Date and on the Revolving Loan Maturity Date or (i) in the case of RL Commitment Commission payable pursuant to preceding clause (x), such earlier date upon which the Total Multicurrency Facility Revolving Loan Commitment is terminated and (ii) in the case of RL Commitment Commission payable pursuant to preceding clause (y), such earlier date upon which the Total Dollar Facility Revolving Loan Commitment is terminated. (b) (x) The Bermuda Borrower agrees to pay to the Administrative Agent for distribution to each Multicurrency Facility RL Lender (or, after Sharing Event has occurred, each RL Lender) (based on their respective L/C Participation Percentages as from time to time in effect in the outstanding Multicurrency Facility Letters of Credit) in Dollars (or, in the case of Euro Denominated Letters of Credit, for periods prior to the occurrence of a Sharing Event, in Euros) a fee in respect of each Multicurrency Facility Letter of Credit issued hereunder, (y) the Bermuda Borrower agrees to pay to the Administrative Agent for distribution to each Dollar Facility RL Lender (or, after Sharing Event has occurred, each RL Lender) (based on their respective L/C Participation Percentages in the outstanding Bermuda Borrower Dollar Facility Letters of Credit) in Dollars a fee in respect of each Bermuda Borrower Dollar Facility Letter of Credit issued hereunder and (z) the U.S. Borrower agrees to pay to the Administrative Agent for distribution to each Dollar Facility RL Lender (or, after Sharing Event has occurred, each RL Lender) (based on their respective L/C Participation Percentages in the outstanding U.S. Borrower Dollar Facility Letters of Credit) in Dollars a fee in respect of each U.S. Borrower Dollar Facility Letter of Credit issued hereunder (with all fees payable as described in this clause (b) being herein referred to as "Letter of Credit Fees"), in each case, for the period from and including the date of issuance of such Letter of Credit through the termination of such Letter of Credit, computed at a rate per annum equal to the Applicable Margin for Multicurrency Facility Revolving Loans (in the case of determinations pursuant to preceding clause (x)) or Dollar Facility Revolving Loans (in the case of determination pursuant to preceding clauses (y) and (z)), in either case maintained as Euro Rate Loans, as in effect from time to time, on (i) the daily Stated Amount of such Letter of Credit (in the case of a Dollar Denominated Letter of Credit and, for periods occurring after a Sharing Event, for all Letters of Credit) and (ii) the daily Euro L/C Stated Amount of such Letter of Credit (in the case of a Euro Denominated Letter of Credit for all periods prior to the occurrence of a Sharing Event). Accrued Letter of Credit Fees shall be due and payable quarterly in arrears on each Quarterly Payment Date and, in the case of Letter of Credit Fees owing pursuant to preceding clause (x), on the first day on or after the termination of the Total Multicurrency Facility Revolving Loan Commitment upon which no Multicurrency Facility Letters of Credit remain outstanding and, in the case of Letter of Credit Fees payable pursuant to preceding clauses (y) and (z), on the first day on or after the termination of the Total Dollar Facility Revolving Loan Commitment upon which no Dollar Facility Letters of Credit remain outstanding. (c) Each Account Party agrees to pay to the respective Issuing Lender, for its own account, in Dollars (in the case of each Dollar Denominated Letter of Credit and, for all periods after the occurrence of a Sharing Event, each Letter of Credit) or in Euros (in the case of Euro Denominated Letters of Credit for periods prior to the occurrence of a Sharing Event), a facing fee in respect of each Letter of Credit issued hereunder (the "Facing Fee") for the period from and including the date of issuance of such Letter of Credit to and including the termination -50- or expiration of such Letter of Credit, computed at a rate equal to 1/4 of 1% per annum of (x) the daily Stated Amount of such Letter of Credit (in the case of a Dollar Denominated Letter of Credit, and, for all periods occurring after a Sharing Event, all Letters of Credit) and (y) the daily Euro L/C Stated Amount of such Letter of Credit (in the case of a Euro Denominated Letter of Credit at any time prior to a Sharing Event), 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 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 Quarterly Payment Date and upon the first day on or after the termination of the Total Revolving Loan 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 under the letter of credit agreement governing the same, 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 Initial Borrowing Date. (d) 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. (e) The Bermuda Borrower agrees to pay to the Administrative Agent for distribution to each Multicurrency Facility RL Lender (or, after Sharing Event has occurred, each RL Lender) (based on their respective B/G Participation Percentages as from time to time in effect in the outstanding Bank Guaranties) in Dollars (or, in the case of Euro Denominated Bank Guaranties, for periods prior to the occurrence of a Sharing Event, in Euros) a fee in respect of each Bank Guaranty issued hereunder (with all fees payable as described in this clause (e) being herein referred to as "Bank Guaranty Fees"), in each case, for the period from and including the date of issuance of such Bank Guaranty through the termination of such Bank Guaranty, computed at a rate per annum equal to the Applicable Margin for Multicurrency Facility Revolving Loans maintained as Euro Rate Loans, as in effect from time to time, on (i) the daily Face Amount of such Bank Guaranty (in the case of a Dollar Denominated Bank Guaranty and, for periods occurring after a Sharing Event, for all Bank Guaranties) and (ii) the daily Euro B/G -51- Face Amount of such Bank Guaranty (in the case of a Euro Denominated Bank Guaranty for all periods prior to the occurrence of a Sharing Event). Accrued Bank Guaranty Fees shall be due and payable quarterly in arrears on each Quarterly Payment Date and on the first day on or after the termination of the Total Multicurrency Facility Revolving Loan Commitment upon which no Bank Guaranties remain outstanding. (f) The Bermuda Borrower agrees to pay to the respective Bank Guaranty Issuer, for its own account, in Dollars (in the case of each Dollar Denominated Bank Guaranty and, for all periods after the occurrence of a Sharing Event, each Bank Guaranty) or in Euros (in the case of each Euro Denominated Bank Guaranty for periods prior to the occurrence of a Sharing Event), a fronting fee in respect of each Bank Guaranty issued hereunder (the "Fronting Fee") for the period from and including the date of issuance of such Bank Guaranty to and including the termination or expiration of such Bank Guaranty, computed at a rate equal to 1/4 of 1% per annum of (x) the daily Face Amount of such Bank Guaranty (in the case of a Dollar Denominated Bank Guaranty, and, for all periods occurring after a Sharing Event, all Bank Guaranties) and (y) the daily Euro B/G Face Amount of such Bank Guaranty (in the case of a Euro Denominated Bank Guaranty at any time prior to a Sharing Event), 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 Quarterly Payment Date and upon the first day on or after the termination of the Total Multicurrency Facility Revolving Loan Commitment upon which no Bank Guaranties remain outstanding. (g) The Bermuda Borrower agrees to pay to the respective Bank Guaranty Issuer, 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. (h) 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. -52- (i) All computations of Fees shall be made in accordance with Section 13.07(b). 3.02 Voluntary Termination or Reduction of Revolving Loan Commitments and Adjustments of Multicurrency Facility Revolving Loan Commitments. (a) Upon at least three Business Days' prior notice from an Authorized Officer of Holdings to the Administrative Agent at its Notice Office (which notice the Administrative Agent shall promptly transmit to each of the Lenders), Holdings shall have the right, at any time or from time to time, without premium or penalty, to terminate the Total Unutilized Revolving 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 to reduce, on a pro rata basis (based upon the relative amounts of the Total Multicurrency Facility Revolving Loan Commitment and the Total Dollar Facility Revolving Loan Commitment, in each case as in effect before giving effect to the respective reduction), the Total Multicurrency Facility Revolving Loan Commitment and the Total Dollar Facility Revolving Loan Commitment, provided that no such reduction shall be permitted to be made pursuant to this Section 3.02(a) if the effect thereof is to cause either (x) the Aggregate Multicurrency Facility RL Exposure to exceed the Total Multicurrency Facility Revolving Loan Commitment after giving effect to the reduction thereto pursuant to this Section 3.02(a) or (y) the Aggregate Dollar Facility RL Exposure to exceed the Total Dollar Facility Revolving Loan Commitment after giving effect to the reduction thereto pursuant to this Section 3.02(a). Each reduction to (x) the Total Multicurrency Facility Revolving Loan Commitment pursuant to this Section 3.02(a) shall apply to proportionately and permanently reduce the Multicurrency Facility Revolving Loan Commitment of each Multicurrency Facility RL Lender (based on their respective Multicurrency Facility RL Percentages) and (y) the Total Dollar Facility Revolving Loan Commitment pursuant to this Section 3.02(a) shall apply to proportionally and permanently reduce the Dollar Facility Revolving Loan Commitment of each Dollar Facility RL Lender (based on their respective Dollar Facility RL Percentages). (b) 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, Holdings 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 Multicurrency Facility Revolving Loan Commitment, if any, and/or the Dollar Facility Revolving Loan Commitment, if any, of such Lender, so long as (x) all Loans, 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 Multicurrency Facility RL Percentages, Dollar Facility RL Percentages and/or related L/C Participation Percentages of the remaining Lenders as contemplated below), neither the Individual Multicurrency Facility RL Exposure nor the Individual Dollar Facility RL Exposure of any remaining Lender shall exceed its Multicurrency Facility Revolving Loan Commitment or Dollar Facility Revolving Loan Commitment, as the case may be. After giving effect to the termination of the Commitments of -53- any Lender pursuant to the provisions of this Section 3.02(b), 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 Multicurrency Facility Revolving Loan Commitment and/or the Dollar Facility Revolving Loan Commitment of any Lender is terminated pursuant to this Section 3.02(b), except in cases where the respective Commitments are replaced in full, after giving effect to the termination of any such Commitments of a given Lender pursuant to this Section 3.02(b), there shall occur automatic adjustments (as determined by the Administrative Agent) in the Multicurrency Facility RL Percentages and/or Dollar Facility RL Percentages, as the case may be (and as a result thereof in the related L/C Participation Percentages) of the remaining Multicurrency Facility RL Lenders and/or Dollar Facility RL Lenders, as the case may be, after giving effect to the modifications to the Multicurrency Facility RL Percentages and Dollar Facility RL Percentages of the various remaining Lenders as a result of the termination of the Multicurrency Facility Revolving Loan Commitment and/or Dollar Facility Revolving Loan Commitment, as the case may be, of the respective Replaced Lender. (c) In connection with any reduction or termination of the Total Unutilized Revolving Loan Commitment and/or the Multicurrency Facility Revolving Loan Commitment and/or the Dollar Facility Revolving Loan Commitment of any Lender pursuant to this Section 3.02 and Section 3.03, as the case may be, each of the U.S. Borrower and the Bermuda Borrower hereby irrevocably authorizes Holdings to take all necessary action, in the name of the U.S. Borrower or the Bermuda Borrower, as the case may be, as described in this Section 3.02 or Section 3.03 in order to effect the reduction or termination of the Total Unutilized Revolving Loan Commitment and/or the Multicurrency Facility Revolving Loan Commitment and/or the Dollar Facility Revolving Loan Commitment of such Lender in accordance with the provisions of this Section 3.02 or Section 3.03, as the case may be. 3.03 Mandatory Reduction of Commitments. (a) The Total Commitment (and the Tranche A Term Loan Commitment, the Tranche B Term Loan Commitment and the Revolving Loan Commitment of each Lender with such a Commitment) shall terminate in its entirety on April 30, 2003 unless the Initial Borrowing Date has occurred on or before such date. (b) In addition to any other mandatory commitment reductions pursuant to this Section 3.03, the Total Tranche A Term Loan Commitment (and the Tranche A Term Loan Commitment of each Lender with such a Commitment) shall terminate in its entirety on the Initial Borrowing Date (after giving effect to the making of Tranche A Term Loans on such date). (c) In addition to any other mandatory commitment reductions pursuant to this Section 3.03, the Total Tranche B Term Loan Commitment (and the Tranche B Term Loan Commitment of each Lender with such a Commitment) shall terminate in its entirety on the Initial Borrowing Date (after giving effect to the making of Tranche B Term Loans on such date). -54- (d) In addition to any other mandatory commitment reductions pursuant to this Section 3.03, the Total Revolving Loan Commitment (and the Multicurrency Facility Revolving Loan Commitment and the Dollar Facility Revolving Loan Commitment of each Lender with such a Commitment) shall terminate in its entirety on the earlier to occur of (i) the Revolving Loan Maturity Date and (ii) unless the Required Lenders shall otherwise consent in writing in their sole discretion, a Change of Control. (e) In addition to any other mandatory commitment reductions pursuant to this Section 3.03, the Total Multicurrency Facility Revolving Loan Commitment and the Total Dollar Facility Revolving Loan Commitment shall be permanently reduced from time to time to the extent required by Section 4.02. (f) Each reduction to the Total Tranche A Term Loan Commitment, the Total Tranche B Term Loan Commitment, the Total Multicurrency Facility Revolving Loan Commitment and the Total Dollar Facility Revolving Loan Commitment pursuant to this Section 3.03 as provided above (or pursuant to Section 4.02) shall be applied proportionately to reduce the Tranche A Term Loan Commitment, the Tranche B Term Loan Commitment, the Multicurrency Facility Revolving Loan Commitment or the Dollar Facility Revolving Loan Commitment, as the case may be, of each Lender with such a Commitment. 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 except as otherwise provided in this Agreement, and the right to allocate such prepayments to Tranche A Term Loans, Tranche B Term Loans, Revolving Loans and/or Swingline Loans 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, whether such Loans are Tranche A Term Loans, Tranche B Term Loans, Multicurrency Facility Revolving Loans, U.S. Borrower Dollar Facility Revolving Loans, Bermuda Borrower Dollar Facility Revolving Loans, Multicurrency Facility Swingline Loans, U.S. Borrower Dollar Facility Swingline Loans and/or Bermuda Borrower Dollar Facility Swingline Loans, the amount and currency (or currencies) of the Loans to be prepaid, the Types of Loans to be repaid and, in the case of Euro Rate Loans (other than Swingline 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 (other than Dollar Facility Swingline Loans), (y) the date of such prepayment in the case of Swingline Loans, provided such notice is given prior to 10:00 A.M. (New York time) and (z) 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 Euro Rate Loans (other than Euro Denominated Swingline Loans) and shall, except in the case of Swingline Loans, be promptly transmitted by the Administrative Agent to each of the Lenders; -55- (ii) each partial prepayment applied to any Tranche of Loans shall be in an aggregate principal amount of at least $1,000,000 (taking the Dollar Equivalent of any amounts to be prepaid in Euros) (or the applicable Minimum Borrowing Amount in the case of Swingline Loans), provided that (x) 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 the Minimum Borrowing Amount applicable thereto, 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 and (y) in the case of partial prepayments of any Borrowing of Euro Rate Loans (other than Euro Denominated Swingline Loans) denominated in currencies other than Dollars, the Bermuda Borrower shall use reasonable efforts to allocate such prepayments in a manner so that Borrowings do not remain outstanding in amounts less than the Minimum Borrowing Amount applicable thereto (and, to the extent such Borrowings would remain outstanding in amounts which are less than the Minimum Borrowing Amount applicable thereto, in the case of Multicurrency Facility Revolving Loans, the Bermuda Borrower shall repay any Borrowings which are less than the Minimum Borrowing Amount applicable thereto at the end of the then current Interest Period); (iii) at the time of any prepayment of Euro Rate Loans (other than Euro Denominated Swingline Loans) pursuant to this Section 4.01 on any date other than the last day of the Interest Period applicable thereto, such Borrower shall pay the amounts required pursuant to Section 1.11; (iv) except as provided in clause (vi) below, 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, provided, that at such Borrower's election in connection with any prepayment of Multicurrency Facility Revolving Loans or Dollar Facility Revolving Loans pursuant to this Section 4.01, such prepayment shall not be applied to the prepayment of the respective Revolving Loans of a Defaulting Lender; (v) each prepayment of principal of Tranche A Term Loans and Tranche B Term Loans pursuant to this Section 4.01 shall, subject to the immediately succeeding proviso, be applied to reduce the then remaining Scheduled Repayments of the respective Tranche of Term Loans (x) at any time prior to the satisfaction in full of the obligations of the U.S. Borrower and its Subsidiaries to effect Contemplated Asset Sales pursuant to Section 8.22, in inverse order of maturity (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) and (y) at any time thereafter, 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); provided that repayments of any Tranche of Term Loans pursuant to clause (vi) below shall only apply to reduce the then remaining Scheduled Repayments of such Tranche to the extent the Term Loans so repaid are not replaced (and are not required to be replaced) pursuant to Section 13.12(b), with any such application to reduce the then remaining Scheduled Repayments of the respective Tranche in the manner provided above in this clause (v), unless otherwise specifically agreed by the Required Lenders; -56- (vi) in the event of certain refusals by a Lender as provided in Section 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, such Borrower may, upon five Business Days' written notice by an Authorized Officer of such Borrower to the Administrative Agent at its Notice Office (which notice the Administrative Agent shall promptly transmit to each of the Lenders), repay all Loans and pay all accrued and unpaid interest, Fees, and other amounts, in each case owing to such Lender (or owing to such Lender with respect to each Tranche which gave rise to the need to obtain such Lender's individual consent) in accordance with, and subject to the requirements of, said Section 13.12(b) so long as (A) in the case of the repayment of Multicurrency Facility Revolving Loans of any Lender pursuant to this clause (vi), the Multicurrency Facility Revolving Loan Commitment of such Lender is terminated concurrently with such repayment (at which time Schedule I shall be deemed modified to reflect the changed Multicurrency Facility Revolving Loan Commitments), (B) in the case of the repayment of Dollar Facility Revolving Loans of any Lender pursuant to this clause (vi), the Dollar Facility Revolving Loan Commitment of such Lender is terminated concurrently with such repayment (at which time Schedule I shall be deemed modified to reflect the changed Dollar Facility Revolving Loan Commitments), and (C) the consents required by Section 13.12(b) in connection with the repayment pursuant to this clause (vi) have been obtained; and (vii) in the case of any prepayment of Tranche B Term Loans by the Bermuda Borrower with the proceeds of an Investment in the Bermuda Partnership and the prepayment by the Bermuda Partnership of an intercompany loan to the Bermuda Borrower as contemplated by Section 9.05(xix), such prepayment shall be accompanied by a prepayment of Tranche A Term Loans by the U.S. Borrower in such amount so that the voluntary prepayments of Term Loans at such time is made on a pro rata basis (based upon the TL Repayment Percentages of each such Tranche of Term Loans and the then outstanding principal amounts of each such Tranche of Term Loans). 4.02 Mandatory Repayments and Commitment Reductions. (a) (i) If on any date the Aggregate Multicurrency Facility RL Exposure exceeds the Total Multicurrency Facility Revolving Loan Commitment as then in effect, the Bermuda Borrower shall prepay on such date the principal of outstanding Multicurrency Facility Swingline Loans and/or the principal of outstanding Multicurrency Facility Revolving Loans in an amount (in the case of payments made with respect to Euro Denominated Loans, taking the Dollar Equivalent of the amounts paid in Euros in which payments on such Loans are owing) equal to such excess. If, after giving effect to the prepayment of all outstanding Multicurrency Facility Swingline Loans and Multicurrency Facility Revolving Loans, the aggregate amount of the Multicurrency Facility Letter of Credit Outstandings and Bank Guaranty Outstandings exceeds the Total Multicurrency Facility Revolving Loan Commitment as then in effect, the Bermuda Borrower agrees to pay to the Administrative Agent at the Payment Office on such date an amount of cash or Cash Equivalents (in Dollars or in the respective currencies in which the Multicurrency Facility Letter of Credit Outstandings or Bank Guaranty Outstandings are denominated) equal to the amount of such excess (up to a maximum amount equal to the sum of the Multicurrency Facility Letter of Credit Outstandings and Bank Guaranty Outstandings at such time), such cash or Cash Equivalents to -57- be held as security for all obligations of the Bermuda Borrower hereunder in a cash collateral account to be established by the Administrative Agent. (ii) If on any date the Aggregate Dollar Facility RL Exposure exceeds the Total Dollar Facility Revolving Loan Commitment as then in effect, the U.S. Borrower shall prepay on such date the principal of outstanding U.S. Borrower Dollar Facility Revolving Loans and/or U.S. Borrower Dollar Facility Swingline Loans, and/or the Bermuda Borrower shall prepay on such date the principal of outstanding Bermuda Borrower Dollar Facility Revolving Loans and/or Bermuda Borrower Dollar Facility Swingline Loans, in an amount equal to such excess (with such repayment of Dollar Facility Revolving Loans and Dollar Facility Swingline Loans to be allocated among U.S. Borrower Dollar Facility Revolving Loans, U.S. Borrower Dollar Facility Swingline Loans, Bermuda Borrower Dollar Facility Revolving Loans and Bermuda Borrower Dollar Facility Swingline Loans as the Borrowers may elect). If, after giving effect to the prepayment of all outstanding Dollar Facility Swingline Loans and Dollar Facility Revolving Loans, the aggregate amount of the Dollar Facility Letter of Credit Outstandings exceeds the Total Dollar Facility Revolving Loan Commitment as then in effect, the U.S. Borrower agrees (as to U.S. Borrower Dollar Facility Letters of Credit), and the Bermuda Borrower agrees (as to Bermuda Borrower Dollar Facility Letters of Credit), to pay to the Administrative Agent at the appropriate Payment Office on such date an amount of cash or Cash Equivalents (in Dollars) equal to the amount of such excess (up to a maximum amount equal to (x) in the case of the U.S. Borrower, the Dollar Facility Letter of Credit Outstandings with respect to U.S. Borrower Dollar Facility Letters of Credit at such time and (y) in the case of the Bermuda Borrower, the Dollar Facility Letter of Credit Outstandings with respect to Bermuda Borrower Dollar Facility Letters of Credit at such time), such cash or Cash Equivalents to be held as security for all obligations of the U.S. Borrower or the Bermuda Borrower, as the case may be, hereunder in a cash collateral account to be established by the Administrative Agent. (b) (i) In addition to any other mandatory repayments or commitment reductions pursuant to this Section 4.02, on each date set forth below, the U.S. Borrower shall be required to repay that principal amount of Tranche A Term Loans, to the extent then outstanding, as is set forth opposite such date (each such repayment, as the same may be reduced as provided in Sections 4.01 and 4.02(h), a "Tranche A Term Loan Scheduled Repayment"):

Tranche A Scheduled Repayment Date Amount ---------------------------------- ------ Last day of 2nd Fiscal Quarter of Fiscal Year 2003 $ 5,000,000 Last day of 3rd Fiscal Quarter of Fiscal Year 2003 $ 5,000,000 Last day of 4th Fiscal Quarter of Fiscal Year 2003 $ 5,000,000 Last day of 1st Fiscal Quarter of Fiscal Year 2004 $ 5,000,000 Last day of 2nd Fiscal Quarter of Fiscal Year 2004 $ 5,000,000 Last day of 3rd Fiscal Quarter of Fiscal Year 2004 $ 5,000,000 Last day of 4th Fiscal Quarter of Fiscal Year 2004 $ 5,000,000 Last day of 1st Fiscal Quarter of Fiscal Year 2005 $ 5,000,000 Last day of 2nd Fiscal Quarter of Fiscal Year 2005 $ 5,000,000 Last day of 3rd Fiscal Quarter of Fiscal Year 2005 $ 5,000,000

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Tranche A Scheduled Repayment Date Amount ---------------------------------- ------ Last day of 4th Fiscal Quarter of Fiscal Year 2005 $ 5,000,000 Last day of 1st Fiscal Quarter of Fiscal Year 2006 $ 5,000,000 Last day of 2nd Fiscal Quarter of Fiscal Year 2006 $ 5,000,000 Last day of 3rd Fiscal Quarter of Fiscal Year 2006 $ 5,000,000 Last day of 4th Fiscal Quarter of Fiscal Year 2006 $ 5,000,000 Last day of 1st Fiscal Quarter of Fiscal Year 2007 $ 5,000,000 Last day of 2nd Fiscal Quarter of Fiscal Year 2007 $ 5,000,000 Last day of 3rd Fiscal Quarter of Fiscal Year 2007 $ 5,000,000 Last day of 4th Fiscal Quarter of Fiscal Year 2007 $ 5,000,000 Tranche A Term Loan Maturity Date $155,000,000

(ii) In addition to any other mandatory repayments or commitment reductions pursuant to this Section 4.02, on each date set forth below, the Bermuda Borrower shall be required to repay that principal amount of Tranche B Term Loans, to the extent then outstanding, as is set forth opposite such date (each such repayment, as the same may be reduced as provided in Sections 4.01 and 4.02(h), a "Tranche B Term Loan Scheduled Repayment"):

Tranche B Scheduled Repayment Date Amount ---------------------------------- ------ Last day of 2nd Fiscal Quarter of Fiscal Year 2003 $ 9,000,000 Last day of 3rd Fiscal Quarter of Fiscal Year 2003 $ 9,000,000 Last day of 4th Fiscal Quarter of Fiscal Year 2003 $ 9,000,000 Last day of 1st Fiscal Quarter of Fiscal Year 2004 $ 14,000,000 Last day of 2nd Fiscal Quarter of Fiscal Year 2004 $ 14,000,000 Last day of 3rd Fiscal Quarter of Fiscal Year 2004 $ 14,000,000 Last day of 4th Fiscal Quarter of Fiscal Year 2004 $ 14,000,000 Last day of 1st Fiscal Quarter of Fiscal Year 2005 $ 14,000,000 Last day of 2nd Fiscal Quarter of Fiscal Year 2005 $ 14,000,000 Last day of 3rd Fiscal Quarter of Fiscal Year 2005 $ 14,000,000 Last day of 4th Fiscal Quarter of Fiscal Year 2005 $ 14,000,000 Last day of 1st Fiscal Quarter of Fiscal Year 2006 $ 14,000,000 Last day of 2nd Fiscal Quarter of Fiscal Year 2006 $ 14,000,000 Last day of 3rd Fiscal Quarter of Fiscal Year 2006 $ 14,000,000 Last day of 4th Fiscal Quarter of Fiscal Year 2006 $ 14,000,000 Last day of 1st Fiscal Quarter of Fiscal Year 2007 $ 14,000,000 Last day of 2nd Fiscal Quarter of Fiscal Year 2007 $ 14,000,000 Last day of 3rd Fiscal Quarter of Fiscal Year 2007 $ 14,000,000

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Tranche B Scheduled Repayment Date Amount ---------------------------------- ------ Last day of 4th Fiscal Quarter of Fiscal Year 2007 $ 14,000,000 Last day of 1st Fiscal Quarter of Fiscal Year 2008 $ 14,000,000 Last day of 2nd Fiscal Quarter of Fiscal Year 2008 $155,000,000 Tranche B Term Loan Maturity Date $155,000,000

(c) In addition to any other mandatory repayments or commitment reductions pursuant to this Section 4.02, on each date on or after the Effective Date upon which Holdings or any of the its Subsidiaries receives Net Sale Proceeds from any Asset Sale, an amount equal to 100% of the Net Sale Proceeds from such Asset Sale shall be applied as a mandatory repayment and/or commitment reduction in accordance with the requirements of Sections 4.02(h) and (i); provided that (i) with respect to Net Sale Proceeds (other than (x) Net Sale Proceeds from any Contemplated Asset Sale consummated in accordance with the requirements of Section 8.22 and (y) any Net Sale Proceeds from the sale of any Principal Property pursuant to Section 9.02(xix)) received by Holdings or any of its Subsidiaries in any Fiscal Year of Holdings not to exceed (in the aggregate) $25,000,000, such Net Sale Proceeds shall not give rise to a mandatory repayment and/or commitment reduction on such date as otherwise required above, so long as no Specified Default and no Event of Default exists at the time such Net Sale Proceeds are received and an Authorized Officer of Holdings or the 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 within 360 days following the date of receipt of such Net Sale Proceeds from such Asset Sale (which certificate shall set forth the estimates of the proceeds to be so expended); provided, however, that (I) if all or any portion of such Net Sale Proceeds are not so used within such 360-day period (or contractually committed within such period to be used), such remaining portion shall be applied on the last day of such period as a mandatory repayment as provided above (without giving effect to the immediately preceding proviso) and (II) if all or any portion of such Net Sale Proceeds are not required to be applied on the last day of such 360-day period referred to in clause (I) of this proviso because such amount is contractually committed within such period to be used and then either (A) subsequent to such date such contract is terminated or expires without such portion being so used or (B) such contractually committed portion is not so used within six months after the last day of such 360-day period referred to in clause (I) of this proviso, such remaining portion, in the case of either of the preceding clauses (A) or (B), shall be applied as a mandatory repayment as provided above (without giving effect to the immediately preceding proviso). Notwithstanding anything to the contrary contained in this Section 4.02(c), (x) if the New Senior Notes Documents or Existing Senior Notes Documents permit a lesser amount to be reinvested, or have a shorter reinvestment period, than is provided above with respect to any Asset Sales, then such lesser permitted reinvestment amount, and/or shorter reinvestment period, as the case may be, shall be applicable for purposes of this Section 4.02(c) so long as the New Senior Notes or such Existing Senior Notes, as the case may be, remain outstanding, and (y) in no event shall Holdings or any of its Subsidiaries use any proceeds from any Asset Sale to make any voluntary or mandatory repayment or prepayment of New Senior Notes or Existing Senior Notes and, before any such obligation to use such proceeds to make such repayment shall arise, Holdings or the respective Subsidiary shall reinvest the respective -60- amounts as permitted above in this Section 4.02(c) or apply such proceeds as a mandatory prepayment in accordance with requirements of Sections 4.02(h) and (i). (d) In addition to any other mandatory repayments or commitment reductions pursuant to this Section 4.02, on each date on or after the Effective Date on which Holdings or any of its Subsidiaries receives any cash proceeds from (i) any incurrence of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 9.04 as in effect on the Effective Date), (ii) any issuance of Equity Interests (other than Holdings Common Stock or options, rights or warrants therefor) by Holdings or (iii) any issuance of capital stock or other Equity Interests by, or cash capital contributions to, any Subsidiary of Holdings (other than (x) issuances of common Equity Interests to Holdings or any other Subsidiary of Holdings by Holdings or any other Subsidiary of Holdings, and (y) cash capital contributions to any Subsidiary of Holdings by Holdings or any Subsidiary of Holdings), an amount equal to 100% of the Net Cash Proceeds of the respective incurrence of Indebtedness, issuance of Equity Interests or cash capital contribution shall be applied as a mandatory repayment in accordance with the requirements of Sections 4.02(h) and (i). (e) In addition to any other mandatory repayments or commitment reductions pursuant to this Section 4.02, on each date after the Initial Borrowing Date on which Holdings or any of its Subsidiaries receives any cash proceeds from any sale or issuance of Holdings Common Stock (including from the sale or issuance of options, warrants or rights to purchase any such equity) by, or cash capital contributions to, Holdings (including any contribution made pursuant to the Capital Call Agreement but excluding proceeds received from (i) the Common Equity Financing and (ii) the sale or issuance by Holdings of shares of its common stock (including as a result of the exercise of any options or warrants with regard thereto), or options or warrants to purchase shares of its common stock, to any employee, officer or director of Holdings or any of its Subsidiaries in an aggregate amount (for all such sales and issuances) not to exceed $2,000,000 in any Fiscal Year of Holdings), an amount equal to the Applicable Prepayment Percentage of such cash proceeds (net of all underwriting discounts, fees and commissions and other costs and expenses associated therewith) of the respective equity issuance or capital contribution shall be applied as a mandatory repayment and/or commitment reduction in accordance with the requirements of Sections 4.02(h) and (i). (f) In addition to any other mandatory repayments or commitment reductions pursuant to this Section 4.02, within 10 days following each date on or after the Effective Date on which Holdings or any of its Subsidiaries receives any proceeds from any Recovery Event (other than proceeds from Recovery Events in an amount less than $2,500,000 per Recovery Event), an amount equal to 100% of the proceeds of such Recovery Event (net of reasonable costs (including, without limitation, legal costs and expenses) and taxes incurred in connection with such Recovery Event and the amount of such proceeds required to be used to repay any Indebtedness (other than Indebtedness of the Lenders pursuant to this Agreement) which is secured by the respective assets subject to such Recovery Event) shall be applied as a mandatory repayment and/or commitment reduction in accordance with the requirements of Sections 4.02(h) and (i); provided that so long as no Specified Default and no Event of Default then exists and such proceeds do not exceed $25,000,000, such proceeds shall not be required to be so applied on such date to the extent that an Authorized Officer of Holdings or the U.S. Borrower has delivered a certificate to the Administrative Agent on or prior to such date stating that such -61- proceeds shall be used (or contractually committed to be used) within 360 days following the date of receipt of such proceeds from such Recovery Event to replace or restore any properties or assets in respect of which such proceeds were paid (which certificate shall set forth the estimates of the proceeds to be so expended), and provided further, that (I) if all or any portion of such proceeds are not so used (or contractually committed to be used) within such 360-day period, such remaining portion shall be applied as a mandatory repayment and/or commitment reduction as provided above (without giving effect to the immediately preceding proviso) and (II) if all or any portion of such proceeds are not required to be applied on the last day of such 360-day period referred to in clause (I) of this proviso because such amount is contractually committed to be used and then either (A) subsequent to such date such contract is terminated or expires without such portion being so used or (B) such contractually committed portion is not so used within six months after the last day of such 360-day period referred to in clause (I) of this proviso, such remaining portion, in the case of either of the preceding clauses (A) or (B), shall be applied as a mandatory repayment and/or commitment reduction as provided above (without giving effect to the immediately preceding proviso). (g) In addition to any other mandatory repayments or commitment reductions pursuant to this Section 4.02, on each Excess Cash Payment Date, an amount equal to the Applicable Prepayment Percentage of the Excess Cash Flow for the relevant Excess Cash Flow Payment Period shall be applied as a mandatory repayment and/or commitment reduction in accordance with the requirements of Sections 4.02(h) and (i). (h) (I) Each amount required to be applied pursuant to Sections 4.02(c), (d), (e), (f), and (g) in accordance with this Section 4.02(h) shall, subject to Section 4.02(k), be applied (i) first, to repay the outstanding principal amount of Term Loans and (ii) second, to the extent in excess of the amounts required to be applied pursuant to preceding clause (i), to permanently reduce the Total Revolving Loan Commitment. (II) Each amount required to be applied to repay outstanding Term Loans pursuant to this Section 4.02(h) shall, subject to Section 4.02(k) 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 Term Loans); provided that (i) the Net Sale Proceeds from any Asset Sale effected by Holdings or any of its Domestic Subsidiaries and required to be applied to the repayment of Term Loans pursuant to clause (I) of this Section 4.02(h), shall be applied (x) first, to repay principal of outstanding Tranche A Term Loans and (y) second, after the repayment in full of all outstanding Tranche A Term Loans, to repay principal of outstanding Tranche B Term Loans and (ii) the Net Sale Proceeds from any Asset Sale effected by any Foreign Subsidiary of Holdings and required to be applied to the repayment of Term Loans pursuant to clause (I) of this Section 4.02(h), shall be applied (x) first, to repay principal of outstanding Tranche B Term Loans and (y) second, after the repayment in full of all outstanding Tranche B Term Loans, to repay principal of outstanding Tranche A Term Loans. (III) The amount of each reduction to the Total Revolving Loan Commitment pursuant to this Section 4.02(h) shall be applied to reduce the Total Multicurrency Facility Revolving Loan Commitment and the Total Dollar Facility Revolving Loan on a pro rata basis (based on the relative amounts of the Total Multicurrency Facility Revolving Loan Commitment -62- and the Total Dollar Facility Revolving Loan Commitment in each case as in effect before giving effect to the respective reduction). In addition, (x) the amount of any reduction to the Revolving Loan Commitments as provided in subclause (I)(ii) of this Section 4.02(h) above shall be deemed to be an application of proceeds for purposes of this Section 4.02(h) even though cash may not be required to actually be applied, (y) in connection with any reduction to the Total Revolving Loan Commitment, any cash received by Holdings or any Subsidiary of the U.S. Borrower in connection with the event giving rise to such reduction will be retained by such Person, except to the extent that such cash is otherwise required to be applied as provided in Section 4.02(a) as a result of any such reduction to the Total Revolving Loan Commitment and (z) each reduction to the Total Multicurrency Facility Revolving Loan Commitment or the Total Dollar Facility Revolving Loan Commitment shall apply to reduce the respective underlying Commitments of the Lenders on a pro rata basis as provided in Section 3.03(f). (IV) All repayments of outstanding Term Loans pursuant to Section 4.02(c) shall be applied (x) at any time prior to the satisfaction in full of the obligations of the U.S. Borrower and its Subsidiaries to effect Contemplated Asset Sales pursuant to Section 8.22, to reduce the then remaining Scheduled Repayments of the respective Tranche of Term Loans in inverse order of maturity (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) and (y) at any time thereafter, 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). All repayments of outstanding Term Loans pursuant to Section 4.02(d), (e), (f) or (g) 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). (i) With respect to each repayment of Loans required by this Section 4.02, the respective Borrower may (subject to the requirements of preceding clause (h)) designate the Types of Loans of the respective Tranche which are to be repaid and, in the case of Euro Rate Loans (other than Swingline Loans), the specific Borrowing or Borrowings of the respective Tranche pursuant to which made, provided that: (i) in the case of repayments of Euro Rate Loans (other than Swingline Loans), repayments of such Loans pursuant to this Section 4.02 on any day other than the last day of an Interest Period applicable thereto shall be accompanied by payment by the respective Borrower of all amounts owing in connection therewith pursuant to Section 1.11; (ii) if any repayment of Euro Rate Loans (other than Swingline Loans) made pursuant to a single Borrowing shall reduce the outstanding Euro Rate Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable to the respective Euro Rate Loans, such Borrowing (x) in the case of Eurodollar Loans, shall be converted at the end of the then current Interest Period into a Borrowing of Base Rate Loans and (y) in the case of Euro Denominated Revolving Loans, shall be repaid in full at the end of the then current Interest Period; and (iii) except as provided in Section 4.02(k), 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 respective 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. -63- (j) Notwithstanding anything to the contrary contained elsewhere in this Agreement, (i) all then outstanding Swingline Loans shall be repaid in full on the Swingline Expiry Date, (ii) all other then outstanding Loans shall be repaid in full on the respective Maturity Date for such Loans and (iii) unless the Required Lenders shall otherwise agree in writing in their sole discretion, all outstanding Loans shall be repaid in full upon the occurrence of a Change of Control. (k) Notwithstanding anything to the contrary contained above in this Section 4.02, with respect to any mandatory repayments of Tranche B Term Loans (excluding Scheduled Repayments, repayments pursuant to Section 4.02(c) with the Net Sale Proceeds from Asset Sales effected by any Foreign Subsidiary of Holdings and repayments pursuant to Section 4.02(j)) otherwise required above pursuant to this Section 4.02, if on or prior to the date the respective mandatory repayment is otherwise required to be made pursuant to this Section 4.02, the Bermuda Borrower has given the Administrative Agent written notification that the Bermuda Borrower has elected to give each Lender with a Tranche B Term Loan the right to waive such Lender's rights to receive such repayment (each, a "Waivable Repayment"), the Administrative Agent shall, unless the then outstanding Tranche A Term Loans shall be repaid in full with the share of the respective mandatory repayment allocable thereto (before giving effect to any additional reallocation thereto pursuant to this clause (k)) in accordance with the relevant provisions of Section 4.02, promptly notify each Lender with a Tranche B Term Loan of (x) such receipt, (y) the amount of the repayment to be applied to such Lender's Tranche B Term Loans and (z) the maximum aggregate amount of the respective Waivable Repayment which can be waived by the holders of Tranche B Term Loans (the "Maximum Waivable Amount"), which shall be equal to the lesser of (i) the aggregate amount of the Waivable Repayment required, in the absence of this Section 4.02(k), to be applied to the repayment of outstanding Tranche B Term Loans and (ii) the aggregate principal amount of Tranche A Term Loans which will be outstanding after giving effect to the application of the amounts then required to be applied to the repayment of such Tranche A Term Loans pursuant to the provisions of Section 4.02, before giving effect to the provisions of this clause (k). In the event any such Lender with a Tranche B Term Loan desires to waive such Lender's right to receive its share any such Waivable Repayment, in whole or in part, such Lender shall so advise the Administrative Agent no later than 5:00 P.M. (New York time) five Business Days after the date of such notice from the Administrative Agent which notice shall also include the amount the Lender desires to receive. If the Lender does not reply to the Administrative Agent within such five Business Day period, it will be deemed acceptance of the total payment. If the Lender does not specify an amount it wishes to receive, it will be deemed acceptance of 100% of the total payment. In the event that any such Lender waives such Lender's right to any such Waivable Repayment, the Administrative Agent shall apply 100% of the amounts so waived by such Lenders to prepay the Tranche A Term Loans in accordance with Sections 4.02(h) and (i) (for this purpose, deeming the TL Repayment Percentage of the Tranche B Term Loans to be 0%); provided that if the amounts so waived by the Lenders as described above would exceed the Maximum Waivable Amount, the amount waived by each Lender shall be reduced proportionally (based on the amounts waived by each Lender) to the extent needed so that the aggregate of the amounts so waived shall not exceed the Maximum Waivable Amount. If the Bermuda Borrower elects to give the notice described above in this Section 4.02(k) with respect to any mandatory repayment, the amount of the respective Waivable Repayment shall be deposited with the Administrative Agent on the date the mandatory repayment would otherwise be required pursuant to the relevant -64- provisions of this Section 4.02 (and held by the Administrative Agent as cash collateral for the Tranche B Term Loans, and, but only to the extent Lenders with Tranche B Term Loans waive their right to receive their share of the Waivable Repayment, for the benefit of the Tranche A Term Loans, in a cash collateral account until the proceeds are applied to the applicable Loans) and the respective repayment shall not be required to be made until the seventh Business Day occurring after the date the respective repayment would otherwise have been required to be made. Notwithstanding anything to the contrary contained above, (i) if one or more Lenders holding Tranche B Term Loans waives its right to receive all or any part of any Waivable Repayment, but less than all the Lenders holding the Tranche B Term Loans waive in full their right to receive 100% of the total payment otherwise required with respect to the Tranche B Term Loans, then of the amount actually applied to the repayment of the Tranche B Term Loans of Lenders which have waived in part, but not in full, their right to receive 100% of such repayment, such amount shall be applied to each then outstanding Borrowing of the Tranche B Term Loans on a pro rata basis (so that each Lender holding Tranche B Term Loans shall, after giving effect to the application of the respective repayment, maintain the same percentage (as determined for such Lender, but not the same percentage as the other Lenders hold and not the same percentage held by such Lender prior to repayment) of each Borrowing of Tranche B Term Loans which remains outstanding after giving effect to such application), and (ii) the right of the Lenders holding Tranche B Term Loans to waive their right to receive any mandatory repayments pursuant to this Section 4.02(k) shall only be applicable so long as any Tranche A Term Loans are outstanding at the time of such mandatory repayment, and such right shall exist only to the extent of outstanding Tranche A Term Loans (after giving effect to any prior or concurrent repayment of Tranche A Term Loans). (l) Notwithstanding anything to the contrary contained above, all payments owing with respect to each Tranche pursuant to this Section 4.02 shall be made in the respective currency or currencies in which the respective obligations are owing in accordance with the terms of this Agreement. For purposes of making calculations pursuant to this Section 4.02, the Administrative Agent shall be entitled to use the Dollar Equivalent or Euro Equivalent, as the case may be, of any such amounts required to be converted into other currencies for purposes of making determinations pursuant to this Section 4.02. 4.03 Method and Place of Payment. Except as otherwise specifically provided herein, all payments under this Agreement or any Note 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 (x) Dollars in immediately available funds at the Payment Office of the Administrative Agent in respect of any obligation of the Borrowers under this Agreement except as otherwise provided in the immediately following clause (y) and (y) Euros in immediately available funds at the Payment Office of the Administrative Agent, if such payment is made in respect of (i) principal of or interest on Euro Denominated Loans, (ii) Letter of Credit Fees, Facing Fees and Unpaid Drawings (and interest thereon) in respect of Euro Denominated Letters of Credit at any time prior to the occurrence of a Sharing Event, (iii) Bank Guaranty Fees and Unreimbursed Payments (and interest thereon) in respect of Euro Denominated Bank Guaranties at any time prior to the occurrence of a Sharing Event or (iv) any increased costs, indemnities or other amounts owing with respect to Euro Denominated Loans (or Commitments relating thereto), Euro Denominated Letters of Credit or Euro Denominated Bank Guaranties at any time prior to the occurrence of a Sharing Event. The Administrative -65- 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 the 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 or under any Note shall be stated to be due on a day which is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest shall be payable at the applicable rate during such extension. 4.04 Net Payments. (a) All payments made by any Credit Party under any Credit Document (including, in the case of Holdings or the U.S. Borrower, in its capacity as a guarantor pursuant to Section 14 or 15, as the case may be) 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 respective 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 respective Borrower (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 Credit Agreement Parties 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. -66- (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 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 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 Borrower agrees to pay additional amounts and to indemnify each Lender in the manner set forth -67- 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 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. Conditions Precedent to Credit Events on the Initial Borrowing Date. The obligation of each Lender to make each Loan hereunder, the obligation of each Issuing Lender to issue each Letter of Credit hereunder and the obligation of each Bank Guaranty Issuer to issue each Bank Guaranty hereunder, in any case on the Initial Borrowing Date, is subject, at the time of the making of such Loans, the issuance of such Letters of Credit and the issuance of such Bank Guaranties to the satisfaction of the following conditions: 5.01 Execution of Agreement; Notes. On or prior to the Initial Borrowing Date, (i) the Effective Date shall have occurred and (ii) there shall have been delivered to the Administrative Agent for the account of each Lender which has requested the same the appropriate Tranche A Term Note, Tranche B Term Note, Multicurrency Facility Revolving Note, U.S. Borrower Dollar Facility Revolving Note and/or Bermuda Borrower Dollar Facility Revolving Note and to the Swingline Lender, if so requested by it, the Multicurrency Facility Swingline Note, the U.S. Borrower Dollar Facility Swingline Note and the Bermuda Borrower Dollar Facility Swingline Note, in each case executed by the relevant Borrower and in the amount, maturity and as otherwise provided herein. 5.02 Officer's Certificate. On the Initial Borrowing Date, the Administrative Agent shall have received a certificate from the U.S. Borrower, dated such date and signed by an Authorized Officer of the U.S. Borrower, (x) certifying that all of the applicable conditions set forth in Sections 5.05 through 5.13, inclusive, and Sections 6A.01 and 6B.01 (other than such conditions that are expressly subject to the satisfaction of the Agents and/or the Required Lenders), have been satisfied on such date and (y) containing the representation and warranty set forth in Section 7.26. 5.03 Opinions of Counsel. On the Initial Borrowing Date, the Administrative Agent shall have received (i) from Paul, Hastings, Janofsky & Walker LLP, special counsel to the Credit Parties, an opinion addressed to each Agent, the Collateral Agent and each of the Lenders and dated the Initial Borrowing Date substantially in the form of Exhibit E-1, (ii) from Appleby, Spurling & Kempe, special Bermuda counsel to the Credit Parties organized under the laws of Bermuda, an opinion addressed to each Agent, the Collateral Agent and each of the Lenders and dated the Initial Borrowing Date substantially in the form of Exhibit E-2, (iii) from foreign counsel to the Credit Parties and/or the Agents in each Qualified Non-U.S. Jurisdiction, Germany, Italy, Japan, Turkey, Colombia, Costa Rica, Honduras and the Philippines, in each case reasonably satisfactory to the Agents, opinions which shall (x) be addressed to each Agent, the Collateral Agent and each of the Lenders and be dated the Initial Borrowing Date, (y) cover various matters regarding the execution, delivery and performance of the Credit Documents to which Subsidiaries of Holdings organized in the relevant such jurisdiction are party, the perfection and priority of security interests granted by Credit Parties organized in such -68- jurisdiction or granted in respect of entities organized in such jurisdiction, and/or such other matters incident to the transactions contemplated herein as the Agents may reasonably request and (z) be in form, scope and substance reasonably satisfactory to the Agents, (iv) from local counsel to the U.S. Credit Parties and/or the Agents reasonably satisfactory to the Agents practicing in those jurisdictions in which U.S. Mortgaged Properties are located and/or U.S. Subsidiary Guarantors are organized, such opinions as the Agents may reasonably request, which opinions (x) shall be addressed to each Agent, the Collateral Agent and each of the Lenders and be dated the Initial Borrowing Date, (y) shall cover the perfection of the security interests granted pursuant to the relevant Security Documents and such other matters incident to the transactions contemplated herein as the Agents may reasonably request and (z) shall be in form and substance reasonably satisfactory to the Agents, and (v) reliance letters addressed to each Agent, the Collateral Agent and each of the Lenders and dated the Initial Borrowing Date with respect to such legal opinions delivered in connection with the Acquisition, as may have been requested by any Agent or the Required Lenders, which reliance letters and opinions shall cover such matters as the Agents may reasonably request and be in form, scope and substance reasonably satisfactory to the Agents. 5.04 Company Documents; Proceedings. (a) On the Initial Borrowing Date, the Administrative Agent shall have received from each Credit Agreement Party and each U.S. Subsidiary Guarantor a certificate, dated the Initial Borrowing Date, signed by the chairman, a vice-chairman, the president or any vice-president of such Credit Party, and attested to by the secretary, any assistant secretary or other senior officer of such Credit Party, in the form of Exhibit F with appropriate insertions, together with copies of the certificate of incorporation, by-laws or equivalent organizational documents of such Credit Party and the resolutions of such Credit Party referred to in such certificate (and, in the case of the certificate from the U.S. Borrower, together with copies of the certificates of incorporation, by-laws or equivalent organizational documents of each Foreign Subsidiary of Holdings (x) which is a Subsidiary Guarantor or (y) in respect of which security interests are being granted by a Subsidiary Guarantor), and all of the foregoing (including each such certificate of incorporation, by-laws or other organizational document) shall be reasonably satisfactory to the Agents. (b) On the Initial Borrowing Date, all Company and legal proceedings and all instruments and agreements in connection with the transactions contemplated by this Agreement and the other Documents shall be reasonably satisfactory in form and substance to the Agents, and the Administrative Agent shall have received all information and copies of all certificates, documents and papers, including good standing certificates, bring-down certificates and any other records of Company proceedings and governmental approvals, if any, which the Agents reasonably may have requested in connection therewith, such documents and papers, where appropriate, to be certified by proper Company or governmental authorities. (c) On the Initial Borrowing Date and after giving effect to the Transaction, the capital structure (including, without limitation, the terms of any capital stock, options, warrants or other securities issued by Holdings and its Subsidiaries) and management of Holdings, the U.S. Borrower and their respective Subsidiaries shall be in form and substance reasonably satisfactory to the Agents. -69- 5.05 Adverse Change, etc. On the Initial Borrowing Date, nothing shall have occurred since December 28, 2002 (and the Agents and Lenders shall have become aware of no facts, conditions or other information not previously known) which any Agent or the Required Lenders shall reasonably determine has had, or could reasonably be likely to have, (i) a Material Adverse Effect or (ii) material adverse effect on the Transaction. 5.06 Litigation. On the Initial Borrowing Date, there shall be no actions, suits, proceedings or investigations pending or threatened (a) with respect to the Transaction or any documentation executed in connection therewith (including any Credit Document) or the transactions contemplated hereby and thereby, except for the Permitted Shareholder Litigation, (b) with respect to any Existing Indebtedness or (c) which any Agent or the Required Lenders shall determine has had, or could reasonably be expected to have (i) a Material Adverse Effect or (ii) a material adverse effect on the Transaction. 5.07 Approvals. Except for immaterial filings relating to the Acquisition set forth on Schedule XIX, on or prior to the Initial Borrowing Date, (i) all necessary governmental (domestic and foreign), regulatory and third party approvals and/or consents in connection with any Existing Indebtedness, the Transaction, the transactions contemplated by the Documents and otherwise referred to herein or therein shall have been obtained and remain in full force and effect and evidence thereof shall have been provided to the Administrative Agent, and (ii) all applicable waiting periods shall have expired without any action being taken by any competent authority which restrains, prevents or imposes materially adverse conditions upon the consummation of the Transaction, the making of the Loans and the transactions contemplated by the Documents or otherwise referred to herein or therein. Additionally, there shall not exist any judgment, order, injunction or other restraint issued or filed or a hearing seeking injunctive relief or other restraint pending or notified prohibiting or imposing materially adverse conditions upon, or materially delaying, or making economically unfeasible, the consummation of the Transaction or the making of the Loans or the other transactions contemplated by the Documents or otherwise referred to herein or therein. 5.08 Consummation of the Acquisition, etc. (a) On the Initial Borrowing Date, the Acquisition shall have been consummated in all material respects in accordance with the Acquisition Documents and all applicable laws. On the Initial Borrowing Date, (x) the Administrative Agent shall have received true and correct copies of all Acquisition Documents, certified as such by an appropriate officer of Holdings, (y) all Acquisition Documents, and all terms and conditions thereof, shall be in form and substance reasonably satisfactory to the Agents and the Required Lenders and (z) all Acquisition Documents shall be in full force and effect. Each of the conditions precedent to the consummation of the Acquisition as set forth in the Acquisition Documents shall have been satisfied and not waived, except with the consent of the Agents and the Required Lenders, to the reasonable satisfaction of the Agents and the Required Lenders. (b) Subject to Section 13.19, on the Initial Borrowing Date, (i) the Bermuda Partnership shall have acquired substantially all of the legal and beneficial ownership of Foreign Subsidiaries of the U.S. Borrower (as same existed immediately before giving effect to the Acquisition) (such acquisition and related transactions being herein referred to collectively as the "Foreign Asset Transfer"), (ii) the Foreign Asset Transfer shall have been consummated in all -70- material respects in accordance with the Foreign Asset Transfer Documents and all applicable laws, (iii) the Administrative Agent shall have received true and correct copies of all Foreign Asset Transfer Documents, certified as such by an appropriate officer of the U.S. Borrower, (iv) all such Foreign Asset Transfer Documents, and all terms and conditions thereof, shall be in form and substance reasonably satisfactory to the Agents and the Required Lenders and (v) all such Foreign Asset Transfer Documents shall be in full force and effect. After giving effect to the Transaction, the organizational structure of Holdings and its Subsidiaries is accurately set forth on Schedule XII. 5.09 Common Equity Financing; etc. (a) On or prior to the Initial Borrowing Date, (i) Holdings shall have received cash proceeds of at least $125,000,000 from a capital contribution by the Equity Investors to Holdings (the "Common Equity Financing"), (ii) the U.S. Borrower shall have received cash proceeds of $475,000,000 from the issuance by it of a like principal amount of New Senior Notes, (iii) the U.S. Borrower and its Subsidiaries shall have received gross cash proceeds from the consummation of the Sale-Leaseback Transactions in such amount as may be required to satisfy the requirements of Section 5.12, (iv) Holdings shall have contributed the full amount of the Common Equity Financing as a common equity contribution to Acquisition Corp. (the "Holdings Equity Contribution"), (v) the U.S. Borrower shall have caused its Subsidiaries to make intercompany loans and/or dividends to its and their respective parent companies in amounts and on terms reasonably satisfactory to the Agents (the "Internally-Sourced Intercompany Distributions") and (vi) Holdings shall have utilized (and caused its Subsidiaries to utilize) the full amount of the cash proceeds received by them as provided in preceding clauses (i) through (v) to make payments owing in connection with the Transaction prior to the utilization by either Borrower of any proceeds of Loans for such purpose. (b) On the Initial Borrowing Date (after giving effect to the transactions described in preceding clause (a)), the U.S. Borrower shall (subject to Section 7.05(a)) have caused its Subsidiaries to utilize all or a portion of the proceeds of the Tranche B Term Loans incurred by the Bermuda Borrower to make intercompany loans and/or dividends to its and their respective parent companies or affiliates in amounts and on terms reasonably satisfactory to the Lenders (the "Loan-Sourced Intercompany Distributions" and, together with the Internally-Sourced Intercompany Distributions, the "Intercompany Distribution Transactions"). (c) On the Initial Borrowing Date, each of the Common Equity Financing, the Holdings Equity Contribution, the issuance of the New Senior Notes, the Sale-Leaseback Transaction and the Intercompany Distribution Transactions shall have been consummated in accordance with the terms and conditions of the applicable Documents therefor and all applicable law. On the Initial Borrowing Date, (x) the Administrative Agent shall have received true and correct copies of all Common Equity Financing Documents, all New Senior Notes Documents, all Sale-Leaseback Transaction Documents and all Intercompany Distribution Transaction Documents, certified as such by an appropriate officer of Holdings, (y) all such Documents and all terms and conditions thereof (including, without limitation, in the case of the New Senior Notes Documents, amortization, maturities, interest rates, covenants, defaults, remedies, pay-in-kind limitations, guaranties, guarantors and subordination provisions) shall be in form and substance reasonably satisfactory to each Agent and the Required Lenders and (z) all such Documents shall be in full force and effect. All conditions precedent to the consummation of the Common Equity Financing, the issuance of the New Senior Notes, the Sale-Leaseback -71- Transaction and the Intercompany Distribution Transactions as set forth in the relevant Documents therefor shall have been satisfied, and not waived unless consented to by each Agent and the Required Lenders, to the reasonable satisfaction of each Agent and the Required Lenders. (d) The Administrative Agent shall have received evidence, in form, scope and substance reasonably satisfactory to it, that the matters set forth in this Section 5.09 have been satisfied as of the Initial Borrowing Date. 5.10 Amendments to Existing Senior Notes Documents, etc. On the Initial Borrowing Date, (i) the U.S. Borrower and the trustee for the Existing Senior Notes (other than the Existing Senior Notes To Be Refinanced) shall have duly executed and delivered a supplement to each of the Existing 2009 Senior Notes Indenture and the Existing 2013 Senior Notes Indenture (collectively, the "Existing Senior Notes Indenture Supplement"), which supplement shall provide for, inter alia, (I) an increase in the interest rate applicable to the such Existing Senior Notes to the rate to be substantially the same as the rate applicable to the New Senior Notes, (II) senior subordinated guaranties of such Existing Senior Notes from Wholly-Owned Domestic Subsidiaries of the U.S. Borrower which provide guaranties of the New Senior Notes and (III) the addition of certain covenants included in the New Senior Notes Indenture, (ii) the Administrative Agent shall have received true and correct copies of the Existing Senior Notes Indenture Supplement, certified as such by appropriate officer of Holdings, (iii) the Existing Senior Notes Indenture Supplement, and all terms and conditions thereof, shall be in form and substance reasonably satisfactory to the Agents and the Required Lenders and (iv) the Existing Senior Notes Indenture Supplement shall have become effective in accordance with its terms and the terms of the Existing 2009 Senior Notes Indenture or the Existing 2013 Senior Notes Indenture, as the case may be. 5.11 Initial Refinancing. (a) On the Initial Borrowing Date, the U.S. Borrower shall have (i) furnished an irrevocable notice of redemption with respect to the Existing 2005 Senior Notes pursuant to, and in accordance with the requirements of, the Existing 2005 Senior Notes Documents, (ii) defeased or otherwise discharged the Existing 2003 Senior Notes pursuant to, and in accordance with the requirements of, the Existing 2003 Senior Notes Documents on terms reasonably satisfactory to the Agents, and (iii) placed funds in escrow with the respective trustees for the Existing Senior Notes To Be Refinanced in an amount sufficient to effect the Post-Closing Refinancing, all in accordance with the requirements of the relevant Existing Senior Notes Documents. (b) On the Initial Borrowing Date, the total commitments in respect of the Initial Indebtedness to be Refinanced shall have been terminated, and all loans with respect thereto shall have been repaid in full, together with interest thereon, all letters of credit and bank guaranties issued thereunder shall have been terminated (or, in the case of Existing Letters of Credit and Existing Bank Guaranties, incorporated as Letters of Credit or Bank Guaranties hereunder, as the case may be, as contemplated by Section 2A.01(d) or 2B.01(d), as the case may be) and all other amounts owing pursuant to the Initial Indebtedness to be Refinanced shall have been repaid in full and all documents in respect of the Initial Indebtedness to be Refinanced and all guarantees with respect thereto shall have been terminated (except as to indemnification provisions contained therein which by their express terms are intended to survive such termina- -72- tion and as are reasonably satisfactory to the Administrative Agent and the Required Lenders) and be of no further force and effect. (c) On the Initial Borrowing Date, the creditors in respect of the Initial Indebtedness to be Refinanced shall have terminated and released all security interests and Liens on the assets owned by Holdings, the U.S. Borrower and their respective Subsidiaries. The Administrative Agent shall have received such releases of security interests in and Liens on the assets owned by Holdings, the U.S. Borrower and their respective Subsidiaries as may have been requested by the Administrative Agent, which releases shall be in form, scope and substance reasonably satisfactory to each of the Agents. Without limiting the foregoing, there shall have been delivered (i) proper termination statements (Form UCC-3 or the appropriate equivalent) for filing under the UCC of each jurisdiction where a financing statement (Form UCC-1 or the appropriate equivalent) was filed with respect to Holdings, the U.S. Borrower or any of their respective Subsidiaries in connection with the security interests created with respect to the Initial Indebtedness to be Refinanced and the documentation related thereto, (ii) termination or reassignment of any security interest in, or Lien on, any patents, trademarks, copy rights, or similar interests of Holdings, the U.S. Borrower or any of their respective Subsidiaries on which filings have been made, (iii) terminations of all mortgages, leasehold mortgages, deeds of trust and leasehold deeds of trust created with respect to property of Holdings, the U.S. Borrower or any of their respective Subsidiaries, in each case, to secure the obligations in respect of the Indebtedness to be Refinanced, all of which shall be in form, scope and substance reasonably satisfactory to each of the Agents and (iv) all collateral owned by Holdings, the U.S. Borrower or any of their respective Subsidiaries in the possession of any of the creditors in respect of the Initial Indebtedness to be Refinanced or any collateral agent or trustee under any related security document shall have been returned to Holdings, the Borrower or such Subsidiary. (d) The Initial Refinancing shall have been consummated in all material respects in accordance with the relevant Refinancing Documents and all applicable laws. On the Initial Borrowing Date, (x) the Administrative Agent shall have received true and correct copies of all Refinancing Documents, certified as such by appropriate officer of Holdings, (y) all Refinancing Documents, and all terms and conditions thereof, shall be in form and substance reasonably satisfactory to each Agent and the Required Lenders and (z) all Refinancing Documents shall be in full force and effect. Each of the conditions precedent to the consummation of the Initial Refinancing as set forth in the relevant Refinancing Documents shall have been satisfied in all material respects and not waived, except with the consent of the Administrative Agent, to the reasonable satisfaction of the Administrative Agent. (e) The Administrative Agent shall have received evidence in form, scope and substance reasonably satisfactory to the Agents and the Required Lenders that the matters set forth in this Section 5.11 have been satisfied on the Initial Borrowing Date. 5.12 Aggregate Funds Needed to Effect Transaction. The U.S. Borrower shall have fully available cash on hand (after giving effect to the Intercompany Distribution Transactions) in such aggregate amounts as are needed to finance the Acquisition and the Refinancing and to pay all fees and expenses in connection with the Transaction, to the extent such amounts exceed the cash available for such purposes from the Common Equity Financing, -73- the issuance of the New Senior Notes, the consummation of the Sale-Leaseback Transaction and the incurrence of Loans permitted to be incurred on the Initial Borrowing Date. 5.13 Outstanding Indebtedness and Preferred Equity. On the Initial Borrowing Date and after giving effect to the consummation of the Transaction, Holdings and its Subsidiaries shall have no outstanding Preferred Equity or Indebtedness, except for (i) Indebtedness pursuant to or in respect of the Credit Documents, (ii) Indebtedness pursuant to the New Senior Notes Documents, (iii) Indebtedness pursuant to or in respect of the Existing Senior Notes Documents (other than the Existing Senior Notes to be Refinanced and the related Existing Senior Notes Documents), (iv) intercompany Indebtedness incurred by the Bermuda Borrower pursuant to the Intercompany Distribution Transactions, (v) Intercompany Scheduled Existing Indebtedness, (vi) existing Indebtedness of Foreign Subsidiaries of the U.S. Borrower of the type described in 9.04(viii) in an aggregate principal amount not to exceed the principal amount of such Indebtedness permitted by such Section, (vii) Capitalized Lease Obligations arising under the lease entered into in connection with the Sale-Leaseback Transaction, (viii) obligations described in Section 9.04(xxii), and (ix) such other existing indebtedness of Holdings and its Subsidiaries, if any, as shall be permitted by the Agents and Required Lenders to remain outstanding (all of which Indebtedness described in this clause (ix) (other than immaterial Contingent Obligations of Subsidiaries of the U.S. Borrower that represent guaranties of obligations other than Indebtedness) shall be required to be specifically listed as Third Party Scheduled Existing Indebtedness on Part A of Schedule IV). On and as of the Initial Borrowing Date, all Indebtedness described in the immediately preceding sentence shall remain outstanding after giving effect to the Transaction and the other transactions contemplated hereby without any breach, required repayment, required offer to purchase, default, event of default or termination rights existing thereunder or arising as a result of the Transaction and the other transactions contemplated hereby and there shall not be any amendments or modifications to the Existing Indebtedness Agreements (other than as contemplated by Section 5.10 or otherwise requested or approved by the Agents and the Required Lenders). On and as of the Initial Borrowing Date, the Agents and the Required Lenders shall be satisfied with the amount of and the terms and conditions of all Indebtedness described above in this Section 5.13. 5.14 Subsidiaries Guaranties; Intercompany Subordination Agreement; Capital Call Agreement. (a) On the Initial Borrowing Date, each U.S. Subsidiary Guarantor shall have duly authorized, executed and delivered the U.S. Subsidiaries Guaranty in the form of Exhibit G-1 (as amended, modified, restated and/or supplemented from time to time, the "U.S. Subsidiaries Guaranty"), guaranteeing all of the obligations of each of the Borrowers (or, in the case of the Bermuda Partnership Partners, the obligations of the U.S. Borrower) as more fully provided therein, and the U.S. Subsidiaries Guaranty shall be in full force and effect. (b) On the Initial Borrowing Date, each Wholly-Owned Foreign Subsidiary of Holdings (other than the Bermuda Borrower and the Non-Guarantor Subsidiaries at such time) shall have duly authorized, executed and delivered the Guaranty in the form of Exhibit G-2 (as amended, modified, restated and/or supplemented from time to time, the "Foreign Subsidiaries Guaranty"), guaranteeing all of the obligations of the Bermuda Borrower as more fully provided therein, and the Foreign Subsidiaries Guaranty shall be in full force and effect. -74- (c) On the Initial Borrowing Date, each Credit Party and each other Subsidiary of Holdings which is an obligee or obligor with respect to any Intercompany Debt (other than those Non-Wholly Owned Subsidiaries listed on Part D of Schedule XIII) shall have duly authorized, executed and delivered the Intercompany Subordination Agreement in the form of Exhibit P hereto (as amended, modified, restated and/or supplemented from time to time, the "Intercompany Subordination Agreement"), and the Intercompany Subordination Agreement shall be in full force and effect. (d) On the Initial Borrowing Date, Murdock and Holdings shall have duly authorized, executed and delivered the Capital Call Agreement in the form of Exhibit Q hereto (as modified, supplemented or amended from time to time, the "Capital Call Agreement"), and the Capital Call Agreement shall be in full force and effect. (e) On the Initial Borrowing Date, (i) the U.S. Borrower and the Bermuda Partnership Partners shall have entered into intercompany purchase agreements in form and substance satisfactory to the Administrative Agent (as modified, supplemented or amended from time to time, the "Intercompany Receivables Documents"), providing for the sale of accounts receivable by the Bermuda Partnership Partners to, and the purchase of accounts receivable by, the U.S. Borrower, which sale arrangements shall be on a non-recourse basis and for reasonably equivalent value and otherwise on terms satisfactory to the Agents, (ii) the Intercompany Receivables Documents shall be in full force and effect and (iii) the U.S. Borrower shall have delivered to the Collateral Agent proper Financing Statements (Form UCC-1 or the equivalent) executed by each Bermuda Partnership Partner and assigned in favor of the Collateral Agent in a form for filing in the jurisdiction of organization of such Bermuda Partnership Partner. 5.15 Pledge Agreements. (a) On the Initial Borrowing Date, each U.S. Credit Party shall have duly authorized, executed and delivered the U.S. Pledge Agreement in the form of Exhibit H (as amended, modified, restated and/or supplemented from time to time, the "U.S. Pledge Agreement") and shall have delivered to the Collateral Agent, as Pledgee thereunder, all of the U.S. Pledge Agreement Collateral, if any, referred to therein and then owned by such U.S. Credit Party, (x) endorsed in blank in the case of promissory notes constituting U.S. Pledge Agreement Collateral and (y) together with executed and undated transfer powers in the case of certificated Equity Interests constituting U.S. Pledge Agreement Collateral, and the U.S. Pledge Agreement shall be in full force and effect. (b) On the Initial Borrowing Date, (i) each of the Foreign Credit Parties listed on Part A of Schedule XIII shall have duly authorized, executed and delivered a pledge agreement governed by the laws of the jurisdiction in which such Foreign Credit Party is organized, which pledge agreement shall (x) be prepared by local counsel reasonably satisfactory to the Agents, (y) be in form and substance reasonably satisfactory to the Agents and (z) be in full force and effect (each such pledge agreement, as amended, modified, restated and/or supplemented from time to time, a "Foreign Credit Party Pledge Agreement" and, collectively, the "Foreign Credit Party Pledge Agreements") and (ii) such Foreign Credit Parties shall have taken such actions as may be necessary or desirable under local law (as advised by local counsel) to create, maintain, effect, perfect, preserve, maintain and protect the security interests granted (or purported to be granted) by each such Foreign Credit Party Pledge Agreement. Part A of Schedule -75- XIII sets forth a list of all Foreign Credit Party Pledge Agreements to be executed and delivered on the Initial Borrowing Date. (c) On the Initial Borrowing Date, with respect to any Credit Party (whether organized under the laws of the United States or a non-U.S. jurisdiction) which is pledging promissory notes or Equity Interests in one or more Persons organized under the laws of a different jurisdiction from the jurisdiction of organization of the respective Credit Party, if the Agents determine (based on advice of local counsel) that it would be in the interests of the Lenders that the respective Credit Party authorize, execute and deliver one or more additional pledge agreements 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, then the respective Credit Party shall (i) so authorize, execute and deliver one or more such additional pledge agreements (each, as amended, modified, restated and/or supplemented from time to time, a "Local Law Pledge Agreement" and, collectively, the "Local Law Pledge Agreements" and together with the Foreign Credit Party Pledge Agreements, the "Foreign Pledge Agreements") and (ii) take such actions as may be necessary or desirable under local law (as advised by local counsel) to create, maintain, effect, perfect, preserve, maintain and protect the security interests granted (or purported to be granted) by each such Local Law Pledge Agreement. Each Local Law Pledge Agreement shall (i) be prepared by local counsel reasonably satisfactory to the Agents, (ii) be in form and substance reasonably satisfactory to the Agents and (iii) be in full force and effect on the Initial Borrowing Date, it being understood and agreed, however, in the case of any Local Law Pledge Agreement entered into by Holdings or any of its Domestic Subsidiaries, the respective Credit Party shall not be required to pledge more than 65% of the total combined voting power of all classes of Equity Interests entitled to vote of any Foreign Subsidiary that is a corporation (or treated as such for U.S. federal tax purposes) in support of its obligations (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. Credit Parties) (although 100% of the non-voting Equity Interests, if any, of each such Foreign Subsidiary (to the extent not constituting a Restricted Subsidiary) shall be required to be pledged in support of such obligations). Part B of Schedule XIII sets forth a list of all Local Law Pledge Agreements to be executed and delivered on the Initial Borrowing Date. 5.16 U.S. Security Agreement. On the Initial Borrowing Date, each U.S. Credit Party shall have duly authorized, executed and delivered the Security Agreement in the form of Exhibit H (as amended, modified, restated and/or supplemented from time to time, the "U.S. Security Agreement") covering all of such U.S. Credit Party's present and future Security Agreement Collateral referred to therein, together with: (i) proper Financing Statements (Form UCC-1 or the equivalent) fully executed (where required) for filing under the UCC or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by the U.S. Security Agreement; (ii) certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, each of a recent date, listing all effective financing statements that name any U.S. Credit Party or any of its Subsidiaries as debtor and that are filed in the -76- jurisdictions referred to in clause (i) above, together with copies of such other financing statements that name any U.S. Credit Party or any of its Subsidiaries as debtor (none of which shall cover any of the Collateral, except to the extent evidencing Permitted Liens or in respect of which the Collateral Agent shall have received termination statements (Form UCC-3) or such other termination statements as shall be required by local law fully executed (where required) for filing); (iii) evidence of the completion of all other recordings and filings of, or with respect to, the U.S. Security Agreement as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable to perfect the security interests intended to be created by the U.S. Security Agreement; and (iv) evidence that all other actions necessary or, in the reasonable opinion of the Collateral Agent, desirable to create, maintain, effect, perfect, preserve, maintain and protect the security interests purported to be created by the U.S. Security Agreement have been taken; and the U.S. Security Agreement and such other documents shall be in full force and effect. 5.17 Foreign Security Agreements. On the Initial Borrowing Date, each Foreign Credit Party shall have duly authorized, executed and delivered such security agreements, documents and instruments as may be required by the Agents (based on advice of local counsel), with the intent being that the Lenders receive valid and enforceable first priority, perfected security interests in all or substantially all of the assets (including all 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 each Foreign Credit Party in which it is practicable (in accordance with requirements of local law and taking into account such cost and practicality considerations as may be agreed by the Agents) to obtain such security interests (as determined by the Agents, based on advice of local counsel). All security documentation to be executed and delivered by the Foreign Credit Parties pursuant to the immediately preceding sentence (each, as amended, modified, restated and/or supplemented from time to time, a "Foreign Security Agreement" and, collectively, the "Foreign Security Agreements") shall (i) be prepared by local counsel reasonably satisfactory to the Agents, (ii) be in form and substance reasonably satisfactory to the Agents and (iii) be in full force and effect on the Initial Borrowing Date. In connection with the execution and delivery of the Foreign Security Agreements, the respective Foreign Credit Parties shall take such actions as may be necessary or desirable under local law (as advised by local counsel) to create, maintain, effect, perfect, preserve, maintain and protect the security interests granted (or purported to be granted) thereby (including, without limitation, taking actions analogous to those described in Section 5.16 with respect to the Security Agreement Collateral described in the U.S. Security Agreement and in Section 5.18 with respect to the Mortgages covering U.S. Mortgaged Properties), in each case to the extent customary in connection with secured transactions under the laws of the respective jurisdiction or deemed necessary or desirable by the Agents based on advice of local counsel. Part C of Schedule XIII sets forth all Foreign Security Agreements to be executed and delivered on the Initial Borrowing Date. -77- 5.18 Mortgages; Title Insurance; Surveys; etc. (a) On the Initial Borrowing Date, the Collateral Agent shall have received: (i) fully executed counterparts of Mortgages in form and substance reasonably satisfactory to the Collateral Agent, which Mortgages shall cover such of the Real Property (located in the United States or any State or territory thereof) owned or leased by Holdings or any of its Subsidiaries (after giving effect to the Transaction) as are designated on Part A of Schedule III as a U.S. Mortgaged Property, together with evidence that counterparts of the Mortgages have been delivered to the title insurance company insuring the lien of such Mortgage for recording in all places to the extent necessary or, in the reasonable opinion of the Collateral Agent, desirable to effectively create a valid and enforceable first priority mortgage lien or immovable hypothec on each U.S. Mortgaged Property in favor of the Collateral Agent (or such other trustee as may be required or desired under local law) for the benefit of the Secured Creditors, subject to Permitted Encumbrances; (ii) Mortgage Policies on the U.S. Mortgaged Properties issued by such title insurers reasonably satisfactory to the Collateral Agent in amounts satisfactory to the Agents and the Required Lenders assuring the Collateral Agent that the Mortgages on such U.S. Mortgaged Properties are valid and enforceable first priority mortgage liens or immovable hypothecs on the respective U.S. Mortgaged Properties, free and clear of all defects and encumbrances except Permitted Encumbrances and such Mortgage Policies shall otherwise be in form and substance reasonably satisfactory to the Agents and the Required Lenders and shall include, as appropriate, an endorsement for future advances under this Agreement and the Notes and for any other matter that the Collateral Agent may request, shall not include an exception for mechanics' liens or creditors' rights, and shall provide for affirmative insurance and such reinsurance (including direct access agreements) as the Collateral Agent may request; (iii) surveys, in form and substance reasonably satisfactory to the Collateral Agent, of each U.S. Mortgaged Property designated as a "surveyed property" on Part A of Schedule III, dated a recent date reasonably acceptable to the Collateral Agent and certified in a manner reasonably satisfactory to the Collateral Agent by a licensed professional surveyor reasonably satisfactory to the Agents; and (iv) Landlord-Lender Agreements, in form and substance reasonably acceptable to the Collateral Agent, from landlords under leases for those properties designated on Part A of Schedule III as a U.S. Leasehold Property, pursuant to which such landlords shall, among other things, waive any lien they may have on the personal property and fixtures of the U.S. Borrower or any Subsidiary Guarantor located at a U.S. Leasehold Property, and consent to the granting of a Mortgage over the U.S. Borrower's or Subsidiary Guarantor's interest in each U.S. Leasehold Property. (b) On the Initial Borrowing Date, with respect to each Real Property (located outside the United States and the States and territories thereof) owned by Holdings or any of its Subsidiaries (after giving effect of the Transaction) and designated on Part B of Schedule III as a Foreign Mortgaged Property, the respective Credit Party owning same shall have executed such -78- Foreign Security Agreements as may be necessary or desirable (in accordance with the requirements of Section 5.17) to create a valid and enforceable first priority, perfected security interest (or the equivalent under local law) in the respective Foreign Mortgaged Property to secure (as nearly as possible) its obligations under this Agreement or its Guaranty, as applicable, and shall have taken such other actions under local law as are customary in connection with the granting of security interests in Real Property in such jurisdictions for transactions of this type. All actions required pursuant to this clause (b) shall be required to comply with the requirements of Section 5.17 and shall be taken to the satisfaction of the Agents. 5.19 Employee Benefit Plans; Shareholders' Agreements; Management Agreements; Collective Bargaining Agreements; Existing Indebtedness Agreements; Tax Allocation Agreements. On or prior to the Initial Borrowing Date, there shall have been made available to the Administrative Agent by the U.S. Borrower true and correct copies of the following documents, certified as such by the U.S. Borrower (in the case of the agreements referred to in clause (ii), (iii) and (vi) below): (i) all written Plans (and for each Plan that is required to file an annual report on Internal Revenue Service Form 5500-series, a copy of the most recent such report (including, to the extent required, the related financial and actuarial statements and opinions and other supporting statements, certifications, schedules and information), and for each written Plan that is a "single-employer plan," as defined in Section 4001(a)(15) of ERISA, the most recently prepared actuarial valuation therefor) and any other written "employee benefit plans," as defined in Section 3(3) of ERISA, and any other material written agreements, plans or arrangements, with or for the benefit of current or former employees of Holdings or any of its Subsidiaries or any ERISA Affiliate (provided that the foregoing shall apply in the case of any Multiemployer Plan, only to the extent that any document described therein is in the possession of Holdings or any Subsidiary of Holdings or any ERISA Affiliate or reasonably available thereto from the sponsor or trustee of any such plan) (collectively, the "Employee Benefit Plans"); (ii) all written agreements (including, without limitation, shareholders' agreements, subscription agreements and registration rights agreements) entered into by Holdings or any of its Subsidiaries governing the terms and relative rights of its capital stock or other Equity Interests and any agreements entered into by shareholders relating to any such entity with respect to its capital stock or other Equity Interests (collectively, the "Shareholders' Agreements"); (iii) all material written agreements (including employment agreements but limited to those of executive management and division presidents) entered into by Holdings or any of its Subsidiaries with respect to the management of Holdings or any of its Subsidiaries after giving effect to the Transaction (including consulting agreements and other management advisory agreements) (collectively, the "Management Agreements"); (iv) all collective bargaining agreements applying or relating to any employee of Holdings or any of its Subsidiaries after giving effect to the Transaction (collectively, the "Collective Bargaining Agreements"); -79- (v) all agreements evidencing or relating to any Existing Indebtedness of Holdings or any of its Subsidiaries (collectively, the "Existing Indebtedness Agreements"); and (vi) any tax sharing or tax allocation agreements entered into by Holdings or any of its Subsidiaries (collectively, the "Tax Allocation Agreements"); all of which Employee Benefit Plans, Shareholders' Agreements, Management Agreements, Collective Bargaining Agreements, Existing Indebtedness Agreements and Tax Allocation Agreements shall be in form and substance reasonably satisfactory to the Agents and shall be in full force and effect on the Initial Borrowing Date. 5.20 Solvency Certificate; Solvency Opinion; Insurance Certificates; etc. On or before the Initial Borrowing Date, the Administrative Agent shall have received: (a) a solvency certificate in the form of Exhibit J-1 from the chief financial officer of Holdings, dated the Initial Borrowing Date, and supporting the conclusion that, after giving effect to the Transaction and the incurrence of all financings contemplated herein, each Borrower (on a stand-alone basis), the U.S. Borrower and its Subsidiaries (on a consolidated basis), the Bermuda Borrower and its Subsidiaries (on a consolidated basis) and Holdings and its Subsidiaries (on a consolidated basis), in each case, are not insolvent and will not be rendered insolvent by the indebtedness incurred in connection herewith, will not be left with unreasonably small capital with which to engage in its or their respective businesses and will not have incurred debts beyond its or their ability to pay such debts as they mature and become due; (b) a solvency opinion in the form of Exhibit J-2 from a third party valuation firm satisfactory to each of the Agents, addressed to each of the Agents and each of the Lenders and dated the Initial Borrowing Date and supporting the conclusions, that, after giving effect to the Transaction and the incurrence of all financings contemplated herein, the U.S. Borrower and its Subsidiaries (on a consolidated basis), are not insolvent and will not be rendered insolvent by the indebtedness incurred in connection herewith, will not be left with unreasonably small capital with which to engage in their respective businesses and will not have incurred debts beyond their ability to pay such debts as they mature and become due; (c) evidence of insurance complying with the requirements of Section 8.03 for the business and properties of Holdings and its Subsidiaries, in scope, form and substance reasonably satisfactory to the Agents and the Required Lenders and naming the Collateral Agent as an additional insured and/or loss payee, and stating that such insurance shall not be canceled or materially revised without at least 30 days' prior written notice by the insurer to the Collateral Agent; (d) a valuation of the Dole "brand name" and related intellectual property from a valuation firm satisfactory to the Agents and the Required Lenders, which valuation shall be in form and substance satisfactory to the Agents and the Required Lenders; (e) appraisals of all vessels owned by the U.S. Borrower and its Subsidiaries, in each case from an appraiser satisfactory to the Agents and the Required Lenders, which -80- appraisals shall be in form and substance satisfactory to the Agents and the Required Lenders; and (f) a certificate from an Authorized Officer of the U.S. Borrower in form and substance satisfactory to the Agents, certifying that the U.S. Borrower has received a tax opinion from Deloitte & Touche LLP, tax advisor to Holdings, addressed to Holdings and dated the Initial Borrowing Date, addressing certain tax issues arising in connection with the consummation of the Transaction and containing such other certifications with respect to the tax analysis as may be required by the Agents. 5.21 Financial Statements; Pro Forma Financial Statements; Projections. (a) On or prior to the Initial Borrowing Date, there shall have been delivered to the Administrative Agent (i) true and correct copies of the financial statements referred to in Section 7.10(b)(i), (ii) an unaudited pro forma (calculated as if the Transaction had occurred on such date) consolidated balance sheet of the U.S. Borrower and its Consolidated Subsidiaries as of December 28, 2002 and the related pro forma (calculated as if the Transaction had occurred on the first day of the period covered thereby) statement of income for the twelve-month period ended as of such date, after giving effect to the Transaction and the incurrence of all Indebtedness (including the Loans and the New Senior Notes) contemplated herein and prepared in accordance with Article 11 of Rule S-X under the Securities Act (the "Pro Forma Financial Statements"), together with a related funds flow statement, (iii) unaudited consolidated financial data of each Business Segment of the U.S. Borrower and its Consolidated Subsidiaries at, or for the fiscal year of the U.S. Borrower ended on, December 28, 2002 (i.e., consolidated statements of revenue, EBIT and assets) and (iv) interim consolidated financial statements (including income statements and balance sheets) of the U.S. Borrower for each internal accounting period ended after December 28, 2002 and continuing through February 22, 2003, which financial statements, Pro Forma Financial Statements, funds flow statement and interim financial statements shall be reasonably satisfactory to the Agents and the Required Lenders. (b) On or prior to the Initial Borrowing Date, there shall have been delivered to the Administrative Agent detailed projected consolidated financial statements of Holdings and its Consolidated Subsidiaries certified by the Chief Financial Officer of Holdings for the five Fiscal Years ended after the Initial Borrowing Date (including, with respect to the Fiscal Year of Holdings ended nearest December 31, 2003, for each Fiscal Quarter comprising such Fiscal Year) (the "Projections"), which Projections (x) shall reflect the forecasted consolidated financial conditions and income and expenses of Holdings and its Consolidated Subsidiaries after giving effect to the Transaction and the related financing thereof and the other transactions contemplated hereby and (y) shall be reasonably satisfactory in form and substance to the Agents and the Required Lenders. 5.22 Payment of Fees. On the Initial Borrowing Date, all costs, fees and expenses, and all other compensation due to the Agents and the Lenders (including, without limitation, legal fees and expenses) shall have been paid to the extent then due. 5.23 Consent Letter. On the Initial Borrowing Date, the Administrative Agent shall have received a letter from Corporation Service Company, presently located at 80 State Street, Albany, New York, 12207, substantially in the form of Exhibit O, indicating its consent to -81- its appointment by each Credit Party as its agent to receive service of process as specified in Section 13.08, the U.S. Subsidiaries Guaranty or the Foreign Subsidiaries Guaranty, as the case may be. SECTION 6. SECTION 6A. Special Condition Precedent to Incurrence of Revolving Loans and Swingline Loans. The obligation of each RL Lender to make Revolving Loans (including Revolving Loans made on the Initial Borrowing Date, but excluding Mandatory Borrowings made after the Initial Borrowing Date, which shall be made as provided in Sections 1.01(g) and (h)) and the Swingline Lender to make Swingline Loans is subject, at the time of each such making of a Revolving Loan or Swingline Loan (except as hereinafter indicated), to the satisfaction of the following condition: 6A.01 Limitation on Cash on Hand . The aggregate amount of Unrestricted Cash owned or held by Holdings and its Subsidiaries (determined after giving pro forma effect to the making of each such Revolving Loan and/or Swingline Loan and the application of proceeds therefrom and from any other Unrestricted Cash on hand (to the extent such proceeds and/or other Unrestricted Cash are actually utilized by the respective Borrower and/or any other Subsidiary of Holdings on the date of the incurrence of the respective such Revolving Loan and/or Swingline Loan for a permitted purpose under this Agreement other than an investment in Cash Equivalents)) shall not exceed $50,000,000 (for purposes of Unrestricted Cash denominated in a currency other than Dollars, taking the U.S. Dollar Equivalent of such Unrestricted Cash as determined on the date of the incurrence of the respective such Revolving Loan and/or Swingline Loan). SECTION 6B. Conditions Precedent to All Credit Events. The obligation of each Lender to make Loans (including Loans made on the Initial Borrowing Date, but excluding Mandatory Borrowings made after the Initial Borrowing Date, which shall be made as provided in Sections 1.01(g) and (h)), the obligation of an Issuing Lender to issue any Letter of Credit and the obligation of a Bank Guaranty Issuer to issue any Bank Guaranty, is subject, at the time of each such Credit Event (except as hereinafter indicated), to the satisfaction of the following conditions: 6B.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 (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date). 6B.02 Notice of Borrowing; Letter of Credit Request; etc. (a) Prior to the making of each Loan (excluding Swingline Loans and Mandatory Borrowings), the Administrative Agent shall have received a Notice of Borrowing meeting the requirements of Section 1.03(a). Prior to the making of any Swingline Loan, the Swingline Lender shall have received the notice required by Section 1.03(b)(i). -82- (b) Prior to the issuance of each Letter 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). (c) Prior to the issuance of each Bank Guaranty, the Administrative Agent and the respective Bank Guaranty Issuer shall have received a Bank Guaranty Request meeting the requirements of Section 2B.03(a). The occurrence of the Initial Borrowing Date and the acceptance of the benefits or proceeds of each Credit Event shall constitute a representation and warranty by each Credit Agreement Party to each Agent and each of the Lenders that all the conditions specified in Section 5 (with respect to Credit Events occurring on the Initial Borrowing Date), Section 6A (with respect to the Credit Event specifically described in said Section) and Section 6B (with respect to Credit Events on and after the Initial Borrowing 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. All of the Notes, certificates, legal opinions and other documents and papers referred to in Sections 5, 6A and 6B, unless otherwise specified, shall be delivered to the Administrative Agent at the Notice Office for the account of each of the Lenders and, except for the Notes, in sufficient counterparts or copies for each of the Lenders and shall be in form and substance reasonably satisfactory to the Lenders (as evidenced by their execution and delivery of this Agreement). SECTION 7. Representations and Warranties. In order to induce the Lenders to enter into this Agreement, to make the Loans and issue and/or participate in the Letters of Credit and Bank Guaranties as provided for herein, each Credit Agreement Party makes the following representations, warranties and agreements with the Lenders, in each case after giving effect to the Transaction, all of which shall survive the execution and delivery of this Agreement, the making of the Loans and the issuance of the Letters of Credit and Bank Guaranties (with the occurrence of the Initial Borrowing Date and each Credit Event on or after the Initial Borrowing 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 Initial Borrowing 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 Holdings and each of its Subsidiaries (i) is a duly organized and validly existing Company in good standing (or its equivalent) under the laws of the jurisdiction of its organization, (ii) has the Company power and authority to own its property and assets and to transact the business in which it is engaged and presently proposes to engage and (iii) is duly qualified and is authorized to do business and is in good standing (or its equivalent) in all jurisdictions where it is required to be so qualified (or its equivalent) and where the failure to be so qualified has had, or could reasonably be expected to have, a Material Adverse Effect. 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 Documents to which it is a party and has taken all necessary Company action to -83- authorize the execution, delivery and performance of the Documents to which it is a party. Each Credit Party and each Subsidiary thereof has duly executed and delivered each Document to which it is a party and each such Document constitutes the legal, valid and binding obligation of such Credit Party enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws generally affecting creditors' rights and by equitable principles (regardless of whether enforcement is sought in equity or at law). 7.03 No Violation. Neither the execution, delivery or performance by any Credit Party or any Subsidiary thereof of the Documents to which it is a party, nor compliance by any Credit Party or any such Subsidiary with the terms and provisions thereof, nor the consummation of the transactions contemplated herein or therein, (i) will contravene any material provision of any applicable law, statute, rule or regulation, or any order, writ, injunction or decree of any court or governmental instrumentality, (ii) will conflict or be inconsistent with or result in any breach of, any of the terms, covenants, conditions or provisions of, or constitute a default under, or (other than pursuant to the Security Documents) result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the material property or assets of Holdings or any of its Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, credit agreement or any other material agreement, contract or instrument to which Holdings or any of its Subsidiaries is a party or by which it or any of its material property or assets are bound or to which it may be subject (including, without limitation, the New Senior Notes Indenture, the Existing Senior Notes Documents and the other Existing Indebtedness Agreements) or (iii) will violate any provision of the certificate of incorporation, by-laws, certificate of partnership, partnership agreement, certificate of limited liability company, limited liability company agreement or equivalent organizational document, as the case may be, of Holdings or any of its Subsidiaries. 7.04 Litigation. There are no actions, suits, proceedings or investigations pending or, to the knowledge of any Senior Officer, threatened (i) with respect to any Credit Document, (ii) with respect to the Transaction or any other Document, except for the Permitted Shareholder Litigation or (iii) that have had, or could reasonably be expected to have, 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 A Term Loans shall be utilized by the U.S. Borrower on the Initial Borrowing Date solely to (x) finance the Merger and the Refinancing and (y) pay fees and expenses incurred in connection with the Transaction; provided that the proceeds of Tranche A Term Loans shall be applied (I) first, to finance the Merger and pay fees and expenses incurred in connection with the Transaction and (II) second, after the application of such proceeds in full for the purposes described in preceding subclause (I), to finance the Refinancing. The proceeds of the Tranche B Term Loans shall be utilized by the Bermuda Borrower on the Initial Borrowing Date solely to (x) finance the Merger and the Refinancing, (y) effect Intercompany Distribution Transactions in accordance with the requirements of this Agreement and (z) pay fees and expenses incurred in connection with the Transaction; provided that (i) if the U.S. Borrower has fully available cash on hand in such amount as is required to comply with the provisions of Section 5.12 (but, for such purpose, without the Bermuda Borrower utilizing the full amount of the Tranche B Term -84- Loans to finance the Transaction), then the portion of the proceeds of the Tranche B Term Loans not so required to be utilized to finance the Transaction in compliance with said Section 5.12 may be utilized for the general corporate and working capital purposes of the Bermuda Borrower and its affiliates and (ii) the proceeds of Tranche B Term Loans utilized to fund Intercompany Distribution Transactions shall be applied (I) first, to finance the Refinancing and (II) second, after the application of such proceeds in full for the purposes described in preceding subclause (I), to finance the Merger and pay fees and expenses incurred in connection with the Transaction. (b) All proceeds of Revolving Loans and Swingline Loans shall be used for the Borrowers' and their respective Subsidiaries' ongoing working capital requirements and general corporate purposes (including to effect Permitted Acquisitions (to the extent permitted by this Agreement) but excluding payments in connection with the Transaction (except as provided in the proviso below)); provided, however, that proceeds of Dollar Facility Revolving Loans and Multicurrency Facility Revolving Loans (for this purpose using the Dollar Equivalent of the principal amount of all Euro Denominated Revolving Loans incurred on the Initial Borrowing date) in an aggregate amount not to exceed $110,000,000 may be utilized by the Borrowers for the purposes described in Section 7.05(a) above. (c) At the time of each Credit Event occurring on or after the Initial Borrowing Date, the fair market value of all Margin Stock (excluding shares of treasury stock) owned by Holdings and its Subsidiaries does not exceed $2,500,000 (or, if the foregoing representation could not correctly be made because the fair market value of Margin Stock owned by Holdings and its Subsidiaries exceeds $2,500,000 solely as a result of an increase in the trading price of such Margin Stock (and not as a result of supplemental purchases of Margin Stock), the lesser of (x) the fair market value of all such Margin Stock and (y) $10,000,000). In addition, at the time of each Credit Event occurring on or after the Initial Borrowing Date, the value of the Margin Stock at any time owned by Holdings and its Subsidiaries does not exceed 25% of the value of the assets of Holdings and its Subsidiaries taken as a whole. Neither the making of any Loan nor the use of the proceeds thereof nor the occurrence of any other Credit Event will violate or be inconsistent with the provisions of Regulation T, Regulation U or Regulation X. 7.06 Governmental Approvals. Except (x) for immaterial filings relating to the Acquisition set forth on Schedule XIX and (y) as may have been obtained or made on or prior to the Initial Borrowing Date (and which remain in full force and effect on the Initial Borrowing Date), no order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by, any foreign or domestic governmental or public body or authority, or any subdivision thereof, is required to authorize or is required in connection with (i) the execution, delivery and performance of any Document or (ii) the legality, validity, binding effect or enforceability of any Document. 7.07 Investment Company Act. Neither Holdings nor any of its Subsidiaries is an "investment company" or a company "controlled" by an "investment company," within the meaning of the Investment Company Act of 1940, as amended. 7.08 Public Utility Holding Company Act. Neither Holdings nor any of its Subsidiaries is a "holding company," or a "subsidiary company" of a "holding company," or an -85- "affiliate" of a "holding company" or of a "subsidiary company" of a "holding company," within the meaning of the Public Utility Holding Company Act of 1935, as amended. 7.09 True and Complete Disclosure. All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of Holdings or any of its Subsidiaries in writing to any Agent or any Lender (including, without limitation, all information contained in the Documents) for purposes of or in connection with this Agreement, the other Documents or any transaction contemplated herein or therein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of any such Persons in writing to any Agent or any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and not incomplete by omitting to state any material fact necessary to make such information (taken as a whole) not misleading in any material 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 7.09, such factual information shall not include the Projections or any projected financial information contained in any financial projections delivered pursuant to Section 8.01(d). 7.10 Financial Condition; Financial Statements. (a) On and as of the Initial Borrowing Date, on a pro forma basis after giving effect to the Transaction and to all Indebtedness (including the Loans and the New Senior Notes) incurred, and to be incurred, and Liens created, and to be created, by each Credit Party in connection therewith, with respect to each Borrower (on a stand-alone basis), Holdings and its Subsidiaries (on a consolidated 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), Holdings and its Subsidiaries (on a consolidated 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 7.10(a), "debt" means any liability on a claim, and "claim" means (i) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (ii) right to an equitable remedy for breach of performance if such breach gives rise to a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. (b) (i) The audited consolidated statements of financial condition of the U.S. Borrower and its Consolidated Subsidiaries at December 30, 2000, December 29, 2001 and December 28, 2002 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 Initial Borrowing 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 and (ii) the Pro Forma Financial Statements present a good faith estimate of the consolidated pro forma financial -86- condition of the U.S. Borrower and its Consolidated Subsidiaries and the pro forma results of operations of the U.S. Borrower and its Consolidated Subsidiaries for the respective periods covered thereby (after giving effect to the Transaction at the date thereof or for the period covered thereby). All of the financial statements referred to in clause (i) of the immediately preceding sentence have been prepared in accordance with U.S. GAAP consistently applied except to the extent provided in the notes to said financial statements. (c) Since December 28, 2002 (but after giving effect to the Transaction as if same had occurred immediately prior thereto), nothing has occurred that has had, or could reasonably be expected to have, a Material Adverse Effect. (d) Except as fully reflected in the financial statements described in Section 7.10(b) and as otherwise permitted by Section 9.04, (i) there were as of the Initial Borrowing Date (and after giving effect to any Loans made on such date), no liabilities or obligations with respect to Holdings or any of its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in the aggregate, could reasonably be expected to be material to Holdings and its Subsidiaries taken as a whole and (ii) no Credit Agreement Party knows of any basis for the assertion against Holdings or any of its Subsidiaries of any such liability or obligation which, either individually or in the aggregate, has had, or could reasonably be expected to have, a Material Adverse Effect. (e) The Projections have been prepared on a basis consistent with the financial statements referred to in Section 7.10(b) and are based on good faith estimates and assumptions made by the management of Holdings, and on the Initial Borrowing 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 Credit Agreement Party or any of its Subsidiaries which has had, or could reasonably be expected to have, a Material Adverse Effect, which has not been disclosed herein or in such other documents, certificates and statements furnished to the Lenders for use in connection with the transactions contemplated hereby. 7.11 Security Interests. On and after the Initial Borrowing Date, each of the Security Documents creates (or after the execution and delivery thereof will create), as security for the Obligations covered thereby, a valid and enforceable perfected security interest in and Lien on all of the Collateral subject thereto, superior to and prior to the rights of all third Persons, and subject to no other Liens (except that (i) the Security Agreement Collateral may be subject to Permitted Liens, (ii) the Pledge Agreement Collateral may be subject to the Liens described in clauses (i) and (v) of Section 9.03 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 Initial Borrowing Date or on or prior to the execution and delivery thereof as contemplated by Sections 8.11, 8.12, 8.15 and 9.17. -87- 7.12 Compliance with ERISA. (a) Schedule V sets forth, as of the Initial Borrowing Date, each Plan and each Multiemployer Plan. Each Plan (and each related trust, insurance contract or fund) is in compliance in all respects with its terms and in all respects with all applicable laws, including, without limitation, ERISA and the Code and in compliance with the following, except to the extent that any such noncompliances, individually or in the aggregate, would not result in a Material Adverse Effect; each Plan (and each related trust, if any) which is intended to be qualified under Section 401(a) of the Code has received a determination letter from the Internal Revenue Service to the effect that it meets the requirements of Sections 401(a) and 501(a) of the Code (or the sponsor has applied for such determination letter within the remedial amendment period); (1) no Reportable Event has occurred; (2) to the knowledge of any Senior Officer, no Multiemployer Plan is insolvent or in reorganization; (3) no Plan has an Unfunded Current Liability; (4) no Plan which is subject to Section 412 of the Code or Section 302 of ERISA has an accumulated funding deficiency, within the meaning of such sections of the Code or ERISA, or has applied for or received a waiver of an accumulated funding deficiency or an extension of any amortization period, within the meaning of Section 412 of the Code or Section 303 or 304 of ERISA; (5) all required contributions with respect to a Plan and a Multiemployer Plan have been made; (6) neither Holdings nor any Subsidiary of Holdings nor any ERISA Affiliate has incurred any outstanding material liability (including any indirect, contingent or secondary liability) to or on account of a Plan or a Multiemployer Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or expects to incur any such material liability under any of the foregoing sections with respect to any Plan or a Multiemployer Plan; (7) no condition exists which presents a material risk to Holdings or any Subsidiary of Holdings or any ERISA Affiliate of incurring a material liability to or on account of a Plan or a Multiemployer Plan pursuant to the foregoing provisions of ERISA and the Code; (8) no involuntary proceedings have been instituted to terminate or appoint a trustee to administer any Plan which is subject to Title IV of ERISA; (9) no action, suit, proceeding, hearing, audit or investigation with respect to the administration, operation or the investment of assets of any Plan (other than routine claims for benefits) is pending, expected or threatened; (10) using actuarial assumptions and computation methods consistent with Part 1 of subtitle E of Title IV of ERISA, the aggregate liabilities of Holdings and its Subsidiaries and ERISA Affiliates to any Multiemployer Plans in the event of a withdrawal therefrom, as of the close of the most recent fiscal year of each such Multiemployer Plan ended prior to the date of the most recent Credit Event would not exceed $10,000,000; (11) each group health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) which covers or has covered employees or former employees of Holdings, any Subsidiary of Holdings, or any ERISA Affiliate has at all times been operated in compliance with the provisions of Part 6 of subtitle B of Title I of ERISA and Section 4980B of the Code other than any non-compliance which would not result in a material liability to Holdings or any Subsidiary of Holdings; (12) no lien imposed under the Code or ERISA on the assets of Holdings or any Subsidiary of Holdings or any ERISA Affiliate exists, is likely to arise on account of any Plan or any Multiemployer Plan; and (13) and neither Holdings nor any Subsidiary of Holdings maintains or contributes to (a) any employee welfare benefit plan (as defined in Section 3(1) of ERISA) which provides benefits to retired employees and/or other former employees (other than as required by Section 601 of ERISA) or (b) any Plan, the obligations with respect to which could reasonably be expected to have a Material Adverse Effect. -88- (b) Each Foreign Pension Plan has been maintained in substantial compliance with its terms and with the requirements of any and all applicable laws, statutes, rules, regulations and orders and has been maintained, where required, in good standing with applicable regulatory authorities, except to the extent that such noncompliances, individually or in the aggregate, would not result in a Material Adverse Effect. All required contributions with respect to a Foreign Pension Plan have been made. Neither Holdings nor any of its Subsidiaries has incurred any material outstanding obligation in connection with the termination of or withdrawal from any Foreign Pension Plan. The present value of the accrued benefit liabilities (whether or not vested) under each Foreign Pension Plan, determined as of the end of Holdings' most recently ended fiscal year on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets of such Foreign Pension Plan allocable to such benefit liabilities or alternatively, the Foreign Pension Plan is funded in compliance with applicable law in all material respects and Holdings and its Subsidiaries have established adequate reserves for the present value of such accrued benefit liabilities under such Foreign Pension Plan in the financial statements delivered pursuant to Section 8.01(b) and (c). 7.13 Capitalization. (a) On the Initial Borrowing Date and after giving effect to the Transaction, the authorized capital stock of Holdings shall consist of 1,000 shares of common stock, $.001 par value per share (such authorized shares of common stock, together with any subsequently authorized shares of common stock of Holdings, the "Holdings Common Stock"), of which 1000 shares are issued and outstanding. All such outstanding shares have been duly and validly issued, are fully paid and nonassessable and free of preemptive rights. As of the Initial Borrowing Date, except as set forth on Part A of Schedule X hereto, Holdings does not have outstanding any securities convertible into or exchangeable for its capital stock or outstanding any rights to subscribe for or to purchase, or any options for the purchase of, or any agreement providing for the issuance (contingent or otherwise) of, or any calls, commitments or claims of any character relating to, its capital stock or any stock appreciation or similar rights. (b) On the Initial Borrowing Date and after giving effect to the Transaction, the authorized capital stock of the U.S. Borrower shall consist of 1000 shares of common stock, $.001 par value per share, of which 1000 shares were issued and outstanding, owned by Holdings and delivered for pledge pursuant to the U.S. Pledge Agreement. All such outstanding shares have been duly and validly issued, are fully paid and nonassessable and free of preemptive rights. The U.S. Borrower does not have outstanding any securities convertible into or exchangeable for its capital stock or outstanding any rights to subscribe for or to purchase, or any options for the purchase of, or any agreement providing for the issuance (contingent or otherwise) of, or any calls, commitments or claims of any character relating to, its capital stock or any stock appreciation or similar rights. (c) On the Initial Borrowing Date and after giving effect to the Transaction, the authorized capital stock of the Bermuda Borrower shall consist of 2,319,640,170 shares of common stock, $.10 par value per share, of which 2,319,640,170 shares are issued and outstanding and owned indirectly by the Bermuda Partnership. All such outstanding shares have been duly and validly issued, are fully paid and nonassessable and free of preemptive rights. The Bermuda Borrower does not have outstanding any securities convertible into or exchangeable for its capital stock or outstanding any rights to subscribe for or to purchase, or any options for the purchase of, or any agreement providing for the issuance (contingent or otherwise) of, or any -89- calls, commitments or claims of any character relating to, its capital stock or any stock appreciation or similar rights. 7.14 Subsidiaries. On and as of the Initial Borrowing Date and after giving effect to the Transaction, Holdings has no Subsidiaries other than the U.S. Borrower and its Subsidiaries, and the U.S. Borrower has no Subsidiaries other than those Subsidiaries listed on Schedule VII. Schedule VII correctly sets forth, as of the Initial Borrowing Date and after giving effect to the Transaction, (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 each of the Borrowers have been duly and validly issued, are fully paid and non-assessable and, in the case of Non-Wholly Owned Subsidiaries of the U.S. Borrower, have been issued free of preemptive rights. Except as set forth on Part II of Schedule X attached hereto, no Subsidiary of the U.S. Borrower has outstanding any securities convertible into or exchangeable for its capital stock or other Equity Interests or outstanding any right to subscribe for or to purchase, or any options or warrants for the purchase of, or any agreement providing for the issuance (contingent or otherwise) of or any calls, commitments or claims of any character relating to, its capital stock or other Equity Interests or any stock appreciation or similar rights. Except for the existing investments described on Schedule VI, as of the Initial Borrowing Date, neither Holdings nor any of its Subsidiaries owns or holds, directly or indirectly, any capital stock or equity security of, or any other Equity Interests in, any Person other than its Subsidiaries indicated on Schedule VII. 7.15 Intellectual Property, etc. Each of Holdings and each of its Subsidiaries owns or has the right to use all domestic and foreign patents, trademarks, permits, domain names, service marks, trade names, copyrights, licenses, franchises, inventions, trade secrets, proprietary information and know-how of any type, whether or not written (including, but not limited to, rights in computer programs and databases) and formulas, or other rights with respect to the foregoing, and has obtained assignments of all leases, licenses and other rights of whatever nature, in each case necessary for the conduct of its business, without any known conflict with the rights of others which, or the failure to obtain which, as the case may be, individually or in the aggregate, has had, or could reasonably be expected to have, a Material Adverse Effect. 7.16 Compliance with Statutes; Agreements, etc. Each of Holdings and each of its Subsidiaries is in compliance with (i) all applicable statutes, regulations, rules and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property and (ii) all contracts and agreements to which it is a party, except such non-compliances as have not had, and could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. 7.17 Environmental Matters. (a) Each of Holdings and each of its Subsidiaries has complied with, and on the date of each Credit Event is in compliance with, all applicable Environmental Laws and the requirements of any permits issued under such Environmental Laws and neither Holdings nor any of its Subsidiaries is liable for any material penalties, fines or forfeitures for failure to comply with any of the foregoing. There are no pending or past or, to the knowledge of any Senior Officer, threatened Environmental Claims against Holdings or any -90- of its Subsidiaries or any Real Property owned, leased or operated by Holdings or any of its Subsidiaries (including any such claim arising out of the ownership, lease or operation by Holdings or any of its Subsidiaries of any Real Property formerly owned, leased or operated by Holdings or any of its Subsidiaries but no longer owned, leased or operated by Holdings or any of its Subsidiaries). There are no facts, circumstances, conditions or occurrences on any Real Property owned, leased or operated by Holdings or any of its Subsidiaries (including, to the knowledge of a Senior Officer, any Real Property formerly owned, leased or operated by Holdings or any of its Subsidiaries but no longer owned, leased or operated by Holdings or any of its Subsidiaries) or on any property adjoining or in the vicinity of any such Real Property that would reasonably be expected (i) to form the basis of an Environmental Claim against Holdings or any of its Subsidiaries or any such Real Property or (ii) to cause any such Real Property to be subject to any restrictions on the ownership, occupancy, use or transferability of such Real Property by Holdings or any of its Subsidiaries under any applicable Environmental Law. (b) Hazardous Materials have not at any time been generated, used, treated or stored on, or transported to or from, any Real Property owned, leased or operated by Holdings or any of its Subsidiaries except in compliance with all applicable Environmental Laws and in connection with the operation, use and maintenance of such Real Property by Holdings' or such Subsidiary's business. Hazardous Materials have not at any time been Released on or from any Real Property owned, leased or operated by Holdings or any of its Subsidiaries or by any person acting for or under contract to Holdings or any of its Subsidiaries, or to the knowledge of any Credit Agreement Party, by any other Person in respect of Real Property owned, leased or operated by Holdings or any of its Subsidiaries (including, to the knowledge of any Credit Agreement Party, any Real Property owned, leased or operated by Holdings or any of its Subsidiaries but no longer owned, leased or operated by Holdings or any of its Subsidiaries), except in compliance with all applicable Environmental Laws in all material respects. (c) Notwithstanding anything to the contrary in this Section 7.17, the representations made in this Section 7.17 shall only be untrue if the aggregate effect of all conditions, failures, noncompliances, Environmental Claims, Hazardous Materials, Releases and presence of underground storage tanks, in each case of the types described above, has had, or could reasonably be expected to have, a Material Adverse Effect. 7.18 Properties. All Real Property and vessels owned by Holdings or any of its Subsidiaries, and all material leaseholds leased by Holdings or any of its Subsidiaries, in each case as of the Initial Borrowing Date and after giving effect to the Transaction, and the nature of the interest therein, is correctly set forth in Schedule III. Each of Holdings and each of its Subsidiaries has good and marketable title to, or a validly subsisting leasehold interest in, all material properties owned or leased by it, including all Real Property and vessels reflected in Schedule III and in the financial statements (including the Pro Forma Financial Statements) referred to in Section 7.10(b) (except (x) such properties sold in the ordinary course of business since the dates of the respective financial statements referred to therein, (y) such properties otherwise sold as permitted by the terms of this Agreement and (z) such Real Properties owned by the 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. -91- 7.19 Labor Relations. Neither Holdings nor any of its Subsidiaries is engaged in any unfair labor practice that has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. There is (i) no unfair labor practice complaint pending against Holdings or any of its Subsidiaries or, to the knowledge of any Senior Officer, threatened against any of them, before the National Labor Relations Board or any similar foreign tribunal or agency, and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement is so pending against Holdings or any of its Subsidiaries or, to the knowledge of any Senior Officer, threatened against any of them, (ii) no strike, labor dispute, slowdown or stoppage pending against Holdings or any of its Subsidiaries or, to the knowledge of any Senior Officer, threatened against Holdings or any of its Subsidiaries and (iii) no union representation question existing with respect to the employees of Holdings or any of its Subsidiaries and no union organizing activities are taking place, except (with respect to any matter specified in clause (i), (ii) or (iii) above, either individually or in the aggregate) such as has not had, or could reasonably be expected to have, a Material Adverse Effect. 7.20 Tax Returns and Payments. Holdings and each of its Subsidiaries has timely filed (including applicable extensions) with the appropriate taxing authority, all material returns, statements, forms and reports for taxes (the "Returns") required to be filed by or with respect to the income, properties or operations of Holdings and each of its Subsidiaries. The Returns accurately reflect in all material respects all liability for taxes of Holdings and each of its Subsidiaries as a whole for the periods covered thereby. Holdings and each of its Subsidiaries have paid all material taxes payable by them other than those contested in good faith and adequately disclosed and for which adequate reserves have been established in accordance with U.S. GAAP. Except as set forth on Schedule XVIII hereto, there is no action, suit, proceeding, investigation, audit, or claim now pending or, to the knowledge of any Senior Officer, threatened by any authority regarding any taxes relating to Holdings and each of its Subsidiaries. Except as set forth on Schedule XVIII hereto, neither Holdings nor any of its Subsidiaries has entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of taxes of Holdings or any of its Subsidiaries, or is aware of any circumstances that would cause the taxable years or other taxable periods of Holdings or any of its Subsidiaries not to be subject to the normally applicable statute of limitations. 7.21 Scheduled Existing Indebtedness. Schedule IV sets forth a true and complete list of all Indebtedness of Holdings and its Subsidiaries as of the Initial Borrowing Date and which is to remain outstanding after giving effect to the Transaction and the incurrence of Loans on such date (exclusive of (i) Indebtedness pursuant to this Agreement and the other Credit Documents, (ii) Indebtedness pursuant to the Existing Senior Notes Documents, (iii) Indebtedness pursuant to the New Senior Notes Documents, (iv) intercompany Indebtedness pursuant to the Intercompany Distribution Transactions, (v) Indebtedness of Holdings and/or any of its Subsidiaries of the types described in clause (viii) of Section 9.04, (vi) Capitalized Lease Obligations arising under the lease entered into in connection with the Sale-Leaseback Transaction, (vii) obligations described in Section 9.04(xxii), and (viii) immaterial Contingent Obligations of Subsidiaries of the U.S. Borrower that represent guaranties of obligations other than Indebtedness), in each case showing the aggregate principal amount thereof (and the aggregate amount of any undrawn commitments with respect thereto) and the name of the respective borrower and any other entity which directly or indirectly guarantees such debt. Part -92- A of Schedule IV lists all Indebtedness as described in the immediately preceding sentence which is owed to Persons other than Holdings or any of its Subsidiaries (after giving effect to the consummation of the Transaction) (with all such Indebtedness being herein called "Third Party Scheduled Existing Indebtedness") and Part B of Schedule IV lists all Indebtedness as described in the immediately preceding sentence which is owed to Holdings and its Subsidiaries (after giving effect to the Transaction) (with all of such Indebtedness being herein called "Intercompany Scheduled Existing Indebtedness"). 7.22 Insurance. Set forth on Schedule VIII hereto is a true, correct and complete summary of all insurance maintained by Holdings and its Subsidiaries on and as of the Initial Borrowing Date, with the amounts insured (and any deductibles) set forth therein. 7.23 Representations and Warranties in Other Documents. All representations and warranties set forth in the Merger Agreement and the New Senior Notes Documents were true and correct in all material respects at the time as of which such representations and warranties were made (or deemed made pursuant thereto) and shall be true and correct in all material respects as of the Initial Borrowing Date as if such representations or warranties were made on and as of such date, unless stated to relate to a specific earlier date, in which case such representations or warranties shall be true and correct in all material respects as of such specified date. 7.24 Transaction. At the time of consummation thereof, each element of the Transaction shall have been consummated in all material respects in accordance with the terms of the relevant Documents therefor and all applicable laws. At the time of consummation thereof, all consents and approvals of, and filings and registrations with, and all other actions in respect of, all governmental agencies, authorities or instrumentalities required in order to make or consummate each element of the Transaction in accordance with the terms of the relevant Documents therefor and all applicable laws have been obtained, given, filed or taken and are or will be in full force and effect (or effective judicial relief with respect thereto has been obtained). All applicable waiting periods with respect thereto have or, prior to the time when required, will have, expired without, in all such cases, any action being taken by any competent authority that restrains, prevents, or imposes material adverse conditions upon the Transaction. Additionally, there does not exist any judgment, order or injunction prohibiting or imposing material adverse conditions upon any element of the Transaction, the occurrence of any Credit Event, or the performance by Holdings or any of its Subsidiaries of their respective obligations under the Documents and in accordance with all applicable laws. 7.25 Special Purpose Corporations. (a) Each of Holdings, and Acquisition Corp. was formed to effect the Transaction. Prior to the consummation of the Transaction, none of Holdings, or Acquisition Corp. had any significant assets or liabilities. (b) Holdings has no significant assets (other than the capital stock of the U.S. Borrower and immaterial assets used for the performance of those activities permitted to be performed by Holdings pursuant to Section 9.01(b)) or liabilities (other than under this Agreement and the other Documents to which it is a party, those liabilities permitted to be incurred by Holdings pursuant to Section 9.01(b) and, as and when issued from time to time in accordance with the terms of this Agreement, under Shareholder Subordinated Notes). -93- (c) 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 Section 9.01(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 Section 9.01(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), same are promptly (and in any event within one Business Day of receipt thereof) loaned, distributed and/or contributed, subject to Section 9.01(d), to its Subsidiaries and/or Affiliates in accordance with the requirements of Section 9.05 of this Agreement. 7.26 Subordination. (a) The subordination provisions contained in the New Senior Notes Documents and the Existing Senior Notes Documents are enforceable against the U.S. Subsidiary Guarantors party thereto and the holders of the New Senior Notes and the Existing Senior Notes, and all Guaranteed Obligations (as defined in the U.S. Subsidiaries Guaranty) of the U.S. Subsidiary Guarantors are within the definitions of "Guarantor Senior Debt" and "Designated Guarantor Senior Debt" included in such subordination provisions. (b) On and after the execution and delivery of the Shareholder Subordinated Notes, the subordination provisions contained therein will be enforceable against Holdings and the holders of the Shareholder Subordinated Notes, and all Obligations of Holdings hereunder and under the other Credit Documents to which it is a party are within the definitions of "Senior Debt" included in such subordination provisions. SECTION 8. Affirmative Covenants. Each Credit Agreement Party hereby covenants and agrees that as of the Effective Date and thereafter for so long as this Agreement is in effect and until the Total Commitment and all Letters of Credit and Bank Guaranties have been terminated, and the Loans, Notes, 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. Holdings will furnish, or will cause to be furnished, to the Administrative Agent (who shall furnish to each Lender): (a) Monthly Reports. Within 35 days after the end of each of the first two fiscal months of each Fiscal Quarter of Holdings (beginning with the 3rd Fiscal Quarter of Fiscal Year 2003), (x) a consolidated balance sheet of Holdings and its Consolidated Subsidiaries as at the end of such fiscal month and the related consolidated statements of income for such fiscal month and for the elapsed portion of the Fiscal Year ended with the last day of such fiscal month, in each case setting forth comparative figures for the corresponding fiscal month in the prior Fiscal Year (commencing with the delivery of monthly reports for the first fiscal month of Fiscal Year 2004), all of which shall be certified by the Chief Financial Officer or other Authorized Officer of Holdings that they fairly present in all material respects (on a basis consistent with the most recent annual financial statements and with the books and records of Holdings and its Consolidated -94- Subsidiaries) the financial condition of Holdings and its Consolidated Subsidiaries as of the dates indicated and the results of their operations for the periods indicated, subject to normal year-end audit adjustments and the absence of footnotes and (y) a consolidated balance sheet of each Business Segment as at the end of such fiscal month and the related consolidated statement of income of each Business Segment for such fiscal month and for the elapsed portion of the Fiscal Year ended with the last day of such fiscal month, in each case setting forth comparative figures for the corresponding fiscal month in the prior Fiscal Year (commencing with the delivery of monthly reports for the first fiscal month of Fiscal Year 2004). (b) Quarterly Financial Statements. Within 45 days after the close of the first three quarterly accounting periods in each Fiscal Year of Holdings, (i) (x) the consolidated balance sheet of Holdings 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 (commencing with the financial statements to be delivered in respect of the 1st Fiscal Quarter of Fiscal Year 2004) setting forth comparative figures for the corresponding quarterly accounting period in the prior Fiscal Year and the budgeted figures for such quarterly period as set forth in the respective financial projections theretofore delivered pursuant to Section 8.01(d) (unless such quarterly period occurs prior to the delivery (or required delivery) of the first financial projections pursuant to Section 8.01(d) which include such quarterly accounting period), (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 (commencing with the financial statements to be delivered in respect of the 1st Fiscal Quarter of Fiscal Year 2004) setting forth comparative figures for the corresponding quarterly accounting period in the prior Fiscal Year, and (z) commencing with the 3rd Fiscal Quarter of Fiscal Year 2003, the consolidated balance sheets of the U.S. Dole Group and the Non-U.S. Dole Group as at the end of such quarterly accounting period and the related consolidated statements of income of each such group for such quarterly accounting period and for the elapsed portion of the Fiscal Year ended with the last day of such quarterly accounting period, all of the foregoing of which shall be in reasonable detail and, in the case of the financial statements described in subclause (x) above, be certified by the senior financial officer or other Authorized Officer of Holdings that they fairly present in all material respects in accordance with U.S. GAAP the financial condition of Holdings 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. (c) Annual Financial Statements. Within 90 days after the close of each Fiscal Year of Holdings, (i) (x) the consolidated balance sheet of Holdings and its Consolidated Subsidiaries as at the end of such Fiscal Year and the related consolidated -95- statements of income and stockholders' equity and of cash flows for such Fiscal Year and (and commencing with the financial statements to be delivered in respect of Fiscal Year 2004) setting forth comparative consolidated figures for the preceding Fiscal Year and comparable budgeted figures for such Fiscal Year as set forth in the respective financial projections delivered pursuant to Section 8.01(d), (y) the consolidated balance sheet of each Business Segment as at the end of such Fiscal Year and the related consolidated statements of income of each Business Segment for such Fiscal Year and (commencing with the financial statements to be delivered in respect of Fiscal Year 2004) 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 (commencing with the financial statements to be delivered in respect of Fiscal Year 2004) setting forth comparative consolidated figures for the preceding Fiscal Year, (ii) in the case of the financial statements referred to in subclause (i)(x) above (except for such comparable budgeted figures), together with a certification by Deloitte & Touche LLP or such other independent certified public accountants of recognized national standing as shall be acceptable to the Administrative Agent, in each case to the effect that (I) such statements fairly present in all material respects the financial condition of Holdings 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 Holdings 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 which has occurred and is continuing has come to their attention or, if such a Default or an Event of Default has come to their attention, a statement as to the nature thereof, and (iii) management's discussion and analysis of the important operational and financial developments during such Fiscal Year. (d) Financial Projections, etc. Not more than 45 days after the commencement of each Fiscal Year of Holdings (beginning with Fiscal Year 2004), 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 Holdings (i) for each of the four Fiscal Quarters of such Fiscal Year prepared in detail and (ii) for each of the immediately succeeding three Fiscal Years prepared in summary form, in each case, on a consolidated basis, for Holdings and its Consolidated Subsidiaries and setting forth, with appropriate discussion, the principal assumptions upon which such financial projections are based. (e) Officer's Certificates. At the time of the delivery of the financial statements provided for in Sections 8.01(a), (b) and (c), a certificate of the Chief Financial Officer or other Authorized Officer of Holdings 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(b) or (c), set forth (x) in reasonable detail the calculations required to establish whether Holdings and its Subsidiaries were in compliance -96- with the provisions of Sections 3.03, 4.02, 9.02, 9.04, 9.05, 9.06 and 9.08 through and including 9.13 as at the end of such Fiscal Quarter or Fiscal Year, as the case may be, and (y) the calculation of the Leverage Ratio and the Bank Debt Leverage Ratio as at the last day of the respective Fiscal Quarter or Fiscal Year of Holdings, as the case may be, (ii) if delivered with the financial statements required by Section 8.01(c), set forth in reasonable detail the amount of (and the calculations required to establish the amount of) Excess Cash Flow for the respective Excess Cash Flow Payment Period 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 Initial Borrowing Date or, if later, since the date of the most recent certificate delivered pursuant to this Section 8.01(e), or if there have been any such changes, a list in reasonable detail of such changes (but, in each case with respect to this clause (iii), only to the extent that such changes are required to be reported to the Collateral Agent pursuant to the terms of such Security Documents) and whether the Credit Agreement Parties and the other Credit Parties have otherwise taken all actions required to be taken by them pursuant to such Security Documents in connection with any such changes. (f) Notice of Default or Litigation. Promptly, and in any event within five Business Days after a Senior Officer obtains knowledge thereof, notice of (i) the occurrence of any event which constitutes a Default or an Event of Default, which notice shall specify the nature and period of existence thereof and what action Holdings or such Subsidiary proposes to take with respect thereto, (ii) any litigation or proceeding pending or threatened (x) against Holdings or any of its Subsidiaries which has had, or could reasonably be expected to have, a Material Adverse Effect or (y) with respect to any New Senior Notes Document or Existing Senior Notes Document, (iii) any material governmental investigation pending or threatened against Holdings or any of its Subsidiaries and (iv) any other event, change or circumstance which has had, or could reasonably be expected to have, a Material Adverse Effect. (g) Management Letters. Promptly upon receipt thereof, a copy of any "management letter" submitted to Holdings or any of its Subsidiaries by its independent accountants in connection with any annual, interim or special audit made by them of the financial statements of Holdings or any of its Subsidiaries and management's responses thereto. (h) Environmental Matters. Within five Business Days after a Senior Officer obtains knowledge of any of the following (but only to the extent that any of the following, either individually or in the aggregate, has had, or could reasonably be expected to have, (a) a Material Adverse Effect or (b) a remedial cost to Holdings or any of its Subsidiaries in excess of $5,000,000), written notice of: (i) any pending or threatened Environmental Claim against Holdings or any of its Subsidiaries or any Real Property owned, leased or operated by Holdings or any of its Subsidiaries; -97- (ii) any condition or occurrence on any Real Property owned, leased or operated by Holdings or any of its Subsidiaries that (x) results in noncompliance by Holdings or any of its Subsidiaries with any applicable Environmental Law or (y) could reasonably be anticipated to form the basis of an Environmental Claim against Holdings or any of its Subsidiaries or any such Real Property; (iii) any condition or occurrence on any Real Property owned, leased or operated by Holdings or any of its Subsidiaries that could reasonably be anticipated to cause such Real Property to be subject to any restrictions on the ownership, lease, occupancy, use or transferability by Holdings or such Subsidiary, as the case may be, of its interest in such Real Property under any Environmental Law; and (iv) the taking of any removal or remedial action in response to the actual or alleged presence of any Hazardous Material on any Real Property owned, leased or operated by Holdings or any of its Subsidiaries. All such notices shall describe in reasonable detail the nature of the claim, investigation, condition, occurrence or removal or remedial action and Holdings' response or proposed response thereto. In addition, the 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. (i) Reports. Within 3 Business Days following transmission thereof, copies of any filings and registrations with, and reports to, the SEC by Holdings or any of its Subsidiaries and copies of all financial statements, proxy statements, notices and reports as Holdings or any of its Subsidiaries shall send generally to the holders of Indebtedness or (following the public issuance of Equity Interests of Holdings or any of its Subsidiaries) their Equity Interests in their capacity as such holders (to the extent not theretofore delivered to the Lenders pursuant to this Agreement). (j) New Subsidiaries; etc. Within 45 days after the close of each of the first three Fiscal Quarters of each Fiscal Year of Holdings and within 90 days after the close of each Fiscal Year of Holdings, (w) a list showing each Material Foreign Subsidiary of Holdings which has not theretofore become party to the Foreign Subsidiaries Guaranty or any Security Document, (x) a list showing each Subsidiary of Holdings 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 naming the direct owner of all Equity Interests in such Subsidiary and describing such Equity Interests in reasonable detail, and certifying that each such Subsidiary, and each Credit Party which owns any Equity Interests therein, has taken all actions, if any, required pursuant to Sections 8.11 and 9.17 and the relevant Security Documents and certifying Holdings' compliance with the provisions of Section 8.19, (y) a list of each Domestic Subsidiary of Holdings, if any, which has not been transferred to -98- Holdings or one or more Qualified U.S. Obligors pursuant to the requirements of Section 8.19(a) (by virtue of the first proviso to the second sentence of said Section 8.19(a)), and specifically stating the reasons therefor, and (z) a list of each Foreign Subsidiary organized under any Qualified Non-U.S. Jurisdiction, if any, which has not been transferred to one or more Qualified Non-U.S. Obligors pursuant to the requirements of Section 8.19(b) (by reason of the first proviso to the first sentence of said Section 8.19(b)), and specifically stating the reasons therefor. (k) Annual Meetings with Lenders. At the request of the Administrative Agent, Holdings shall, within 120 days after the close of each Fiscal Year of Holdings (beginning with the Fiscal Year ended nearest to December 31, 2003), hold a meeting (which may be by conference call or teleconference), at a time and place selected by Holdings and reasonably acceptable to the Administrative Agent, with all of the Lenders that choose to participate, to review the financial results of the previous Fiscal Year and the financial condition of Holdings and its Subsidiaries and the budgets presented for the current Fiscal Year of Holdings and its Subsidiaries. (l) Notice of Commitment Reductions and Mandatory Repayments. On or prior to the date of any reduction to Commitments or any mandatory repayment of outstanding Term Loans pursuant to Sections 4.02(c) through (g), inclusive, Holdings or the U.S. Borrower shall provide written notice of the amount of the respective reduction or repayment, as the case may be, to the Commitments or the outstanding Term Loans, as applicable, and the calculations therefor (in reasonable detail). (m) Compliance with Section 13.19. On or prior to the 90th day after the Initial Borrowing Date, an appropriate officer in the legal department of Holdings or the U.S. Borrower shall provide a written certification of compliance with all post-closing requirements set forth in Section 13.19 (including those actions required pursuant to Schedule XIV), specifically listing any items where such compliance has not yet occurred (and, with respect to any such items where compliance has not yet occurred, stating the time frame in which it is expected that such actions shall be taken and the reasons such actions have not been completed). Without excusing any failure to comply with Section 13.19, if the certification provided above does not establish complete compliance with all requirements of Section 13.19 (and Schedule XIV), Holdings or the U.S. Borrower shall cause an appropriate officer in its legal department to furnish monthly updates thereafter, in each case showing in reasonable detail all compliances (and any non-compliances) with the requirements of Section 13.19. Such certifications shall no longer be required after the date upon which Holdings or the U.S. Borrower certifies that all actions required be taken pursuant to Section 13.19 (and Schedule XIV) have been completed. (n) Hedging Arrangements. At the time of the delivery of the financial statements provided for in Sections 8.01(b) and (c), a schedule of all Interest Rate Protection Agreements and Other Hedging Agreements entered into by Holdings or any of its Subsidiaries with any Lender and/or any of its affiliates. (o) Other Information. From time to time, such other information or documents (financial or otherwise) with respect to Holdings or its Subsidiaries as the Administrative -99- Agent or any Lender may reasonably request; provided that the tax opinion delivered by Deloitte & Touche LLP pursuant to Section 5.20(f) shall only be made available for review by any Lender requesting same at the headquarters of Holdings. 8.02 Books, Records and Inspections. Each Credit Agreement Party will, and will cause each of its Subsidiaries to, keep proper books of record and accounts in which full, true and correct entries which permit the preparation of financial statements in accordance with U.S. GAAP and which conform to all requirements of law, shall be made of all dealings and transactions in relation to its business and activities. Each Credit Agreement Party will, and will cause each of its Subsidiaries to, permit officers and designated representatives of 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 such Credit Agreement Party or such Subsidiary, any of the properties of such Credit Agreement Party or such Subsidiary, and to examine the books of account of such Credit Agreement Party or such Subsidiary and discuss the affairs, finances and accounts of such Credit Agreement Party or such Subsidiary with, and be advised as to the same by, its and their officers and independent accountants, all upon reasonable prior notice and at such reasonable times and intervals and to such reasonable extent as such Agent or such Lender may reasonably request. 8.03 Insurance. (a) Each Credit Agreement Party will, and will cause each of its Subsidiaries to, (i) maintain, with financially sound and reputable insurance companies, insurance on all its property in at least such amounts and against at least such risks as is consistent and in accordance with industry practice and (ii) furnish to the Administrative Agent, upon request by the Administrative Agent or any Lender, full information as to the insurance carried. Such insurance shall in any event include physical damage insurance on all real and personal property (whether now owned or hereafter acquired) on an all risk basis and business interruption insurance. (b) Each Credit Agreement Party will, and will cause each of its Subsidiaries to, at all times keep the respective property of such Credit Agreement Party and its Subsidiaries insured in favor of the Collateral Agent, and all policies or certificates with respect to such insurance (and any other insurance maintained by, or on behalf of, any Credit Agreement Party or any of its Subsidiaries) (i) shall be endorsed to the Collateral Agent's satisfaction for the benefit of the Collateral Agent (including, without limitation, by naming the Collateral Agent as certificate holder, mortgagee and loss payee with respect to real property, certificate holder and loss payee with respect to personal property, additional insured with respect to general liability and umbrella liability coverage and certificate holder with respect to workers' compensation insurance), (ii) shall state that such insurance policies shall not be canceled or materially changed without at least 30 days' prior written notice thereof by the respective insurer to the Collateral Agent and (iii) shall be deposited with the Collateral Agent. (c) If any Credit Agreement Party or any of its Subsidiaries shall fail to maintain all insurance in accordance with this Section 8.03, or if any Credit Agreement Party or any of its Subsidiaries shall fail to so name the Collateral Agent as an additional insured, mortgagee or loss payee, as the case may be, or so deposit all certificates with respect thereto, the Administrative Agent and/or the Collateral Agent shall have the right (but shall be under no obligation), upon ten Business Days' notice to Holdings or the U.S. Borrower, to procure such -100- insurance, and the Credit Agreement Parties agree jointly and severally to reimburse the Administrative Agent or the Collateral Agent, as the case may be, for all costs and expenses of procuring such insurance. 8.04 Payment of Taxes. Each Credit Agreement Party will pay and discharge, and will cause each of its Subsidiaries to pay and discharge, all taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits, or upon any properties belonging to it, in each case on a timely basis, and all lawful claims which, if unpaid, might become a lien or charge upon any properties of the Credit Agreement Parties or any of their Subsidiaries not otherwise permitted under Section 9.03(i); provided that no Credit Agreement Party or any of its Subsidiaries shall be required to pay any such tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with U.S. GAAP. 8.05 Existence; Franchises. Each Credit Agreement Party will do, and will cause each of its Subsidiaries to do, or cause to be done, all things necessary to preserve and keep in full force and effect its existence and its material rights, franchises, authorities to do business, licenses, certifications, accreditations and patents; provided, however, that nothing in this Section 8.05 shall prevent (i) sales of assets and other transactions by Holdings or any of its Subsidiaries in accordance with Section 9.02, (ii) the withdrawal by Holdings or any of its Subsidiaries of its qualification as a foreign corporation, partnership or limited liability company, as the case may be, in any jurisdiction where such withdrawal could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or (iii) the dissolution of the Excluded Domestic Subsidiary or any Excluded Foreign Subsidiary and; provided further, that this Section 8.05 shall not apply to any Foreign Credit Party organized under the laws of Bermuda. 8.06 Compliance with Statutes; etc. (a) Each Credit Agreement Party will, and will cause each of its Subsidiaries to, comply with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property, except for such noncompliances as, individually or in the aggregate, have not had, and could not reasonably be expected to have, a Material Adverse Effect. (b) Within 5 Business Days after each Credit Agreement Party is required by applicable law, statute, rule or regulation, such Credit Agreement Party shall file (or cause to be filed) with the SEC all reports, financial information and certifications required by applicable law, statute, rule or regulation. 8.07 Compliance with Environmental Laws. (a) (i) Each Credit Agreement Party will comply, and will cause each of its Subsidiaries to comply, in all material respects with all Environmental Laws applicable to the ownership or use of its Real Property and vessels now or hereafter owned, leased or operated by such Credit Agreement Party or any of its Subsidiaries, will promptly pay or cause to be paid all costs and expenses incurred in connection with such compliance, and will keep or cause to be kept all such Real Property and vessels free and clear of any Liens imposed pursuant to such Environmental Laws and (ii) neither any Credit Agreement Party nor any of its Subsidiaries will generate, use, treat, store, Release or dispose of, or permit -101- the generation, use, treatment, storage, Release or disposal of, Hazardous Materials on any Real Property or vessels owned, leased or operated by such Credit Agreement Party or any of its Subsidiaries, or transport or permit the transportation of Hazardous Materials to or from any such Real Property, except as required in the ordinary course of business of Holdings and its Subsidiaries as conducted on the Effective Date 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 Holdings or any of its Subsidiaries, or any tenant or occupant of any Real Property or vessel owned, leased or operated by Holdings or any of its Subsidiaries, causes or permits any intentional or unintentional act or omission resulting in the presence or Release of any Hazardous Material (except in compliance with applicable Environmental Laws), each Credit Agreement Party agrees to undertake, and/or to cause any of its Subsidiaries, tenants or occupants to undertake, at their sole expense, any clean up, removal, remedial or other action required pursuant to Environmental Laws to remove and clean up any Hazardous Materials from any Real Property or vessel except where the failure to do so has not had, and could not reasonably be expected to have, a Material Adverse Effect. (b) At the written request of the Administrative Agent or the Required Lenders, which request shall specify in reasonable detail the basis therefor (which may not simply be a desire for periodic review), at any time and from time to time, the Credit Agreement Parties will provide, at their sole cost and expense, an environmental site assessment report concerning any Real Property now or hereafter owned, leased or operated by Holdings or any of its Subsidiaries, prepared by an environmental consulting firm reasonably approved by the Administrative Agent, addressing the matters which gave rise to such request and estimating the potential costs of any removal, remedial or other corrective action in connection with any such matter. If a Credit Agreement Party fails to provide the same within 45 days after such request was made, the Administrative Agent may order the same, and the Credit Agreement Parties shall grant and hereby do grant, to the Administrative Agent and the Lenders and their agents, access to such Real Property and specifically grant the Administrative Agent and the Lenders and their agents an irrevocable non-exclusive license, subject to the right of tenants, to undertake such an assessment, all at the Credit Agreement Parties' joint and several expense. 8.08 ERISA. As soon as possible and, in any event, within twenty (20) Business Days after Holdings, any Subsidiary of Holdings or any ERISA Affiliate knows or has reason to know of the occurrence of any of the following, Holdings will deliver to the Administrative Agent written notice of the chief financial officer, vice president of human resources or other Authorized Officer of the U.S. Borrower setting forth, to the extent known, and in reasonable detail, such occurrence and the action, if any, that Holdings, such Subsidiary or such ERISA Affiliate is required or proposes to take, together with any notices required or proposed to be given to or filed by Holdings, such Subsidiary, the Plan administrator or such ERISA Affiliate to or with, the PBGC or any other governmental agency, or a Plan or Multiemployer Plan participant, and any notices received by Holdings, such Subsidiary or ERISA Affiliate from the PBGC or other governmental agency or a Plan or Multiemployer Plan participant or the Plan administrator with respect thereto: that a Reportable Event has occurred (except to the extent that Holdings has previously delivered to the Administrative Agent a notice (if any) concerning such event pursuant to the next clause hereof); that a contributing sponsor (as defined in Section -102- 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 Holdings, any Subsidiary of Holdings or any ERISA Affiliate will or may incur any material liability (including any indirect, contingent, or secondary liability) to or on account of the termination of or withdrawal from a Plan or Multiemployer Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan or Multiemployer Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409 or 502(i) or 502(l) of ERISA or with respect to a group health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the Code; or that Holdings or any Subsidiary of Holdings may incur any liability pursuant to any employee welfare benefit plan (as defined in Section 3(1) of ERISA) that provides benefits to retired employees or other former employees (other than as required by Section 601 of ERISA) or any Plan or any Foreign Pension Plan in addition to the liability that existed on the Initial Borrowing Date pursuant to any such plan or plans by an amount that would be material to Holdings or any Subsidiary of Holdings. To the extent that the financial statements set forth with particularity a liability for which notice would otherwise be required to be given hereunder, a separate notice thereof shall not be required hereunder. At the request of the Administrative Agent, Holdings and the 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. Holdings and 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 Holdings, any Subsidiary of Holdings or any ERISA Affiliate with respect to any Plan or Foreign Pension Plan or received from any government agency or plan administrator or sponsor or trustee with respect to any Multiemployer Plan, shall, upon request of the Administrative Agent, be delivered to the Administrative Agent no later than twenty (20) Business Days after the date of such request. Holdings and each of its applicable Subsidiaries shall ensure that all Foreign Pension Plans -103- 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. Each Credit Agreement Party will, and will cause each of its Subsidiaries to, ensure that its material properties and equipment required to be used in its business are kept in reasonably good repair, working order and condition, ordinary wear and tear excepted, and that from time to time there are made in such properties and equipment all needful and proper repairs, renewals, replacements, extensions, additions, betterments and improvements thereto, to the extent and in the manner useful or customary for companies in similar businesses. 8.10 End of Fiscal Years; Fiscal Quarters. Each Credit Agreement Party will cause (i) each of its, and each of its Subsidiaries', fiscal years to end on the Saturday closest to December 31 of each calendar year and (ii) each of its, and each of its Subsidiaries', fiscal quarters to end on the last day of each period described in the definition of "Fiscal Quarter"; provided that Foreign Subsidiaries of Holdings (other than the Bermuda Borrower) shall not be required to maintain the fiscal year and fiscal quarter ends described above if it is not practicable for such Foreign Subsidiary to maintain same as a result of foreign statutes, rules or law applicable to such Foreign Subsidiary. 8.11 Additional Security. Additional Guaranties; Actions with Respect to Non-Guarantor Subsidiaries; Further Assurances. (a) Each Credit Agreement Party will, and will cause its Subsidiaries which are Credit Agreement Parties or Subsidiary Guarantors to, grant to the Collateral Agent security interests and mortgages (each, an "Additional Mortgage") in: (i) such fee-owned (or the equivalent) Real Property acquired by such Person after the Initial Borrowing Date and having a Fair Market Value in excess of $2,500,000 which is not covered by the original Mortgages or Foreign Security Agreements, as appropriate, and (ii) such Leasehold Properties to which a respective landlord has granted its consent to the delivery of a Mortgage over such Leasehold Properties (each such Real Property, an "Additional Mortgaged Property"). All such Additional Mortgages shall be granted pursuant to documentation substantially in the form of a relevant existing Mortgage or, in the case of Additional Mortgaged Properties located in a jurisdiction outside the United States, the relevant Foreign Security Agreement covering Real Property located in such jurisdiction (if any) delivered to the Administrative Agent on the Initial Borrowing Date or in such other form as is reasonably satisfactory to the Administrative Agent and shall constitute valid and enforceable first priority perfected Liens, superior to and prior to the rights of all third Persons and subject to no other Liens (except as are permitted by Section 9.03), in favor of the Collateral Agent (or such other trustee or sub-agent as may be required or desired under local law). The Additional Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to create, maintain, effect, perfect, preserve, maintain and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. (b) Each Credit Agreement Party will, and will cause each of its Subsidiaries to, at its own expense, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such vouchers, invoices, schedules, confirmatory assignments, confirm- -104- atory conveyances, financing statements, transfer endorsements, confirmatory powers of attorney, certificates, reports and other assurances or confirmatory instruments and take such further steps relating to the Collateral covered by any of the Security Documents as the Collateral Agent may reasonably require pursuant to this Section 8.11. Furthermore, each Credit Agreement Party will cause to be delivered to the Collateral Agent such opinions of counsel and other related documents as may be reasonably requested by the Collateral Agent to assure itself that this Section 8.11 has been complied with. (c) Subject to the provisions of following clauses (g) and (h), if (w) at any time any Domestic Subsidiary of Holdings is created, established or acquired, such Subsidiary shall be required to execute and deliver counterparts of the U.S. Subsidiaries Guaranty, the Intercompany Subordination Agreement and such Security Documents as would have been entered into by the respective Subsidiary if same had been a U.S. Subsidiary Guarantor on the Initial Borrowing Date, and in each case shall take all action in connection therewith as would otherwise have been required to be taken pursuant to Section 5 if such Subsidiary had been a U.S. Subsidiary Guarantor on the Initial Borrowing Date, (x) at any time any Subsidiary of Holdings 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 would have been entered into by the respective Subsidiary if same had been a Foreign Subsidiary Guarantor on the Initial Borrowing Date (determined in accordance with the criteria described in Sections 5.15, 5.17 and 5.18(b)), and in each case shall take all action in connection therewith as would otherwise have been required to be taken pursuant to Section 5 if such Subsidiary had been a Foreign Subsidiary Guarantor on the Initial Borrowing Date, (y) at any time any Subsidiary of Holdings organized under the laws of any Non-Qualified Jurisdiction in which a Foreign Subsidiary Guarantor was organized on the Initial Borrowing 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 would have been entered into by the respective Subsidiary if same had been a Foreign Subsidiary Guarantor organized under the laws of such Non-Qualified Jurisdiction on the Initial Borrowing Date (determined in accordance with the criteria described in Sections 5.15, 5.17 and 5.18(b)), and in each case shall take all action in connection therewith as would otherwise have been required to be taken pursuant to Section 5 if such Subsidiary had been a Foreign Subsidiary Guarantor organized under the laws of such Non-Qualified Jurisdiction on the Initial Borrowing Date and (z) if at any time after the Initial Borrowing 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 Foreign Subsidiary of Holdings organized under the laws of such Qualified Jurisdiction (with such exceptions as may be satisfactory to the Administrative Agent or the Required Lenders) shall be required to become a Foreign Subsidiary Guarantor and take all actions specified in preceding clause (x). Furthermore, subject to the provisions of the following clause (h), the Administrative Agent or the Required Lenders may at any time request that one or more Subsidiaries of Holdings organized under the laws of one or more jurisdictions which are not Qualified Jurisdictions become Foreign Subsidiary Guarantors, in which case the Credit Agreement Parties shall cause each such Subsidiary which has been specifically requested to become a Foreign Subsidiary Guarantor to take all actions as are specified in clause (x) of the immediately preceding sentence, -105- provided that no Subsidiary of Holdings shall be required to take such actions if, and to the extent that, based upon written advice of local counsel reasonably satisfactory to the Administrative Agent, Holdings and/or such Subsidiary concludes that the taking of such actions would violate the laws of the jurisdiction in which the respective Subsidiary is organized, provided further, that if steps (such as limiting the amount guaranteed) can be taken so that such violation would not exist, then if requested by the Administrative Agent or the Required Lenders, the respective Subsidiary shall enter into a modified Foreign Subsidiaries Guaranty which provides, to the maximum extent permissible under applicable law, as many of the benefits as are provided pursuant to the Foreign Subsidiaries Guaranty executed and delivered on the Initial Borrowing Date as is possible. (d) In addition to the requirements contained in the Pledge Agreements, each Credit Agreement Party agrees to pledge and deliver, or cause to be pledged and delivered, all of the Equity Interests owned by any Credit Party of each new Unrestricted Subsidiary of Holdings established or created (and each Subsidiary of Holdings which becomes an Unrestricted Subsidiary) after the Initial Borrowing Date to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Pledge Agreements, provided that, subject to the provisions of Section 8.12, in the case of any Foreign Unrestricted Subsidiary that is a corporation (or treated as such for U.S. tax purposes) which is owned by a 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 obligations (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. Credit Parties). (e) Following any request by the Administrative Agent or the Required Lenders, Holdings or any of its Subsidiaries, shall, to the maximum extent permitted by applicable law (but subject to the proviso to preceding clause (d), to the extent applicable), (x) grant security interests in such of their Property (other than Excluded Collateral) as may be requested by the Administrative Agent or the Required Lenders, as the case may be, in which perfected security interests do not already exist pursuant to the Security Documents theretofore executed and delivered and, in connection therewith, the Credit Agreement Parties shall, or shall cause the relevant Subsidiaries of Holdings to, execute and deliver counterparts of (and thereby become parties to) the applicable Security Documents and/or Additional Security Documents, in each case in form and substance reasonably satisfactory to the Administrative Agent and/or (y) with respect to pledges of Equity Interests of, or promissory notes issued by, Persons described in Section 13.20, take such action (including, without limitation, the execution of Additional Security Documents, the making of filings, etc.) under the local law of the Person whose Equity Interests or promissory notes are pledged as may be requested in order to create, preserve, protect or perfect security interests in such Equity Interests and/or promissory notes. (f) The security interests required to be granted pursuant to Sections 8.11(c), (d) and (e) shall be granted pursuant to the respective Security Documents already executed and delivered by the Credit Parties (or other security documentation substantially similar to such Security Documents or otherwise reasonably satisfactory in form and substance to the Collateral Agent) and shall constitute valid and enforceable first priority perfected security interests prior to the rights of all third Persons and subject to no other Liens (other than Permitted Lines). The Credit Agreement Parties shall (or shall cause their respective Subsidiaries), (i) at their own -106- expense, to (x) execute, acknowledge and deliver, or cause the execution, acknowledgment and delivery of, and thereafter register, file or record in any appropriate governmental office, any document or instrument reasonably deemed by the Collateral Agent to be necessary or desirable for the creation, perfection, maintenance, preservation and protection of the Liens on its assets intended to be created pursuant to the relevant Security Documents and (y) take all other actions reasonably requested by the Collateral Agent (including, without limitation, the furnishing of legal opinions) in connection with the granting of the security interests required pursuant to Sections 8.11(c), (d) and (e) and (ii) pay in full all taxes, fees and other charges payable in connection with the granting of the security interests required pursuant to Sections 8.11(c), (d) and (e). (g) Each Credit Agreement Party agrees that each action required above by Section 8.11(a) or (b) shall be completed as soon as possible, but in no event later than 60 days (or, in the case of actions relating to assets located outside the United States, such greater number of days (not to exceed 90 days) as the Administrative Agent shall agree to in its sole and absolute discretion in any given case) after such action is requested to be taken by the Administrative Agent or the Required Lenders. Each Credit Agreement Party further agrees that (x) each action required above by Section 8.11(c), (d) and (f) with respect to a newly formed, created or acquired Subsidiary, or with respect to any Subsidiary which is located in a jurisdiction newly-designated as a Qualified Jurisdiction or which becomes an Unrestricted Subsidiary, shall be completed contemporaneously with the formation, creation or acquisition of such Subsidiary, the date of the addition of the respective jurisdiction to the list of Qualified Jurisdictions or the date such Subsidiary becomes an Unrestricted Subsidiary, as the case may be, (provided that, in the case of a Shell Corporation formed, created or established by the U.S. Borrower or any of its Subsidiaries, such actions shall not be required to be taken (so long as same remains a Shell Corporation) until 60 days after the formation, creation or establishment of such Shell Corporation) and (y) all actions required to be taken pursuant to the last sentence of Section 8.11(c) and Section 8.11(e) shall be taken as promptly as practicable, and in any event within 45 days, after Holdings or the U.S. Borrower receives the respective request from the Administrative Agent or the Required Lenders. (h) Notwithstanding anything to the contrary contained in clauses (c) through (g) above, to the extent the taking of any action as described above by a new Subsidiary acquired 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(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. To the extent the terms of any Permitted Acquired Debt prohibits the taking of actions otherwise required by this Section 8.11, upon the request of the Administrative Agent or the Required Lenders, each Credit Agreement Party shall, or shall cause the respective Subsidiaries of Holdings to, (x) prepay any such Permitted Acquired Debt which is permitted to be prepaid and/or (y) use reasonable efforts to obtain such consents or approvals as are needed so that the taking of the actions otherwise specified in this Section 8.11 would not violate the terms of the respective issue of Permitted -107- 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) or as a result of Investments made pursuant to Section 9.05(xiv), then for so long as such Subsidiary is not a Wholly-Owned Subsidiary, to the extent Holdings in good faith determines that the respective Subsidiary is not able, under applicable requirements of law (whether because of fiduciary duties under applicable law or other requirements of applicable law) to execute and deliver a Subsidiaries Guaranty or one or more Security Documents, the respective such Subsidiary shall not be required to become a Subsidiary Guarantor or execute and deliver such Security Documents as otherwise required above. (i) Within 30 days following the request of the Administrative Agent, the Collateral Agent or the Required Lenders, the Credit Agreement Parties 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, notorial 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. (j) In the event that the Administrative Agent or the Required Lenders at any time after the Initial Borrowing Date determine in their reasonable discretion (whether as a result of a position taken by an applicable bank regulatory agency or official, or otherwise) that real estate appraisals satisfying the requirements set forth in 12 C.F.R., Part 34-Subpart C, or any successor or similar statute, role, regulation, guideline or order (any such appraisal, a "Required Appraisal") are or were required to be obtained, or should be obtained, in connection with any 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, Holdings shall cause such Required Appraisal to be delivered, at the expense of Holdings, to the Administrative Agent, which Required Appraisal, and the respective appraiser, shall be satisfactory to the Administrative Agent. 8.12 Foreign Subsidiaries Security. If following a change in the relevant sections of the Code or the regulations, rules, rulings, notices or other official pronouncements issued or promulgated thereunder, counsel for Holdings reasonably acceptable to the Administrative Agent and the Required Lenders does not within 30 days after a request from the Administrative Agent or the Required Lenders deliver evidence, in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders, that (i) a pledge of 66-2/3% or more of the total combined voting power of all classes of Equity Interests entitled to vote of any Foreign Unrestricted Subsidiary owned by a U.S. Credit Party which has not already had all of its Equity Interests pledged pursuant to the U.S. Pledge Agreement or a Local Law Pledge Agreement, as applicable, to secure all of the Obligations (as defined in the respective such Security Document), (ii) the entering into by a Foreign Subsidiary Guarantor of a pledge agreement in substantially the form of the U.S. Pledge Agreement, (iii) the entering into by a Foreign Subsidiary Guarantor of a security agreement in substantially the form of the U.S. Security Agreement and (iv) the entering into by a Foreign Subsidiary Guarantor of a guaranty in substan- -108- tially the form of the U.S. Subsidiaries Guaranty, in any such case would cause the undistributed earnings of such Foreign Subsidiary as determined for Federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary's United States parent or a deemed disposition of the shares of stock of such Foreign Subsidiary for Federal income tax purposes, then (I) in the case of a failure to deliver the evidence described in clause (i) above, that portion of such Foreign Unrestricted Subsidiary's outstanding Equity Interests owned or held by a U.S. Credit Party and not theretofore pledged pursuant to the U.S. Pledge Agreement or a Local Law Pledge Agreement, as applicable, to secure all of the Obligations (as defined in the respective such Security Document) shall be pledged to the Collateral Agent for the benefit of the Secured Creditors pursuant to the U.S. Pledge Agreement or the relevant Local Law Pledge Agreement (or another pledge agreement in substantially similar form, if needed), (II) in the case of a failure to deliver the evidence described in clause (ii) above, such Foreign Subsidiary Guarantor shall execute and deliver the U.S. Pledge Agreement (or another pledge agreement in substantially similar form, if needed), granting to the Collateral Agent for the benefit of the Secured Creditors a security interest in all of the capital stock, other Equity Interests and promissory notes owned by such Foreign Subsidiary (other than Excluded Collateral) and securing the Obligations of the U.S. Borrower under the Credit Documents and under any Interest Rate Protection Agreement or Other Hedging Agreement and, in the event the U.S. Subsidiaries Guaranty shall have been executed by such Foreign Subsidiary Guarantor, the obligations of such Foreign Subsidiary Guarantor thereunder, (III) in the case of a failure to deliver the evidence described in clause (iii) above, such Foreign Subsidiary Guarantor shall execute and deliver the U.S. Security Agreement (or another security agreement in substantially similar form, if needed) granting to the Collateral Agent for the benefit of the Secured Creditors a security interest in all of such Foreign Subsidiary Guarantor's assets (other than the capital stock, other Equity Interests and promissory notes owned by such Foreign Subsidiary and such assets which constitute Excluded Collateral) and securing the obligations of the U.S. Borrower under the Credit Documents and under any Interest Rate Protection Agreement or Other Hedging Agreement and, in the event the U.S. Subsidiaries Guaranty shall have been executed by such Foreign Subsidiary Guarantor, the obligations of such Foreign Subsidiary Guarantor thereunder, and (IV) in the case of a failure to deliver the evidence described in clause (iv) above, such Foreign Subsidiary Guarantor shall execute and deliver the U.S. Subsidiaries Guaranty (or another guaranty in substantially similar form, if needed), guaranteeing the Obligations of the U.S. Borrower under the Credit Documents and under any Interest Rate Protection Agreement or Other Hedging Agreement, in each case to the extent that the entering into of the U.S. Pledge Agreement, the U.S. Security Agreement or the U.S. Subsidiaries Guaranty (or similar such agreement or guaranty) is permitted by the laws of the respective foreign jurisdiction and with all documents delivered pursuant to this Section 8.12 to be in form and substance reasonably satisfactory to the Administrative Agent and/or the Required Lenders. Notwithstanding anything to the contrary contained in this Section 8.12, no Foreign Subsidiary shall be required to comply with the provisions of this Section 8.12 if the tax advisors for Holdings or such Subsidiary determine that there is a reasonable likelihood that such Foreign Subsidiary is, or has ever been, a passive foreign investment company within the meaning of Section 1297 of the Code. 8.13 Use of Proceeds. Holdings will, and will cause each of its Subsidiaries to, use the proceeds of the Loans for the purposes specified in Section 7.05. No Credit Agreement Party 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 -109- approved and recommended by the board of directors (or functional equivalent thereof) or the requisite shareholders of such Person. 8.14 Ownership of Subsidiaries. (a) Notwithstanding anything to the contrary contained in this Agreement, (x) Holdings shall at all times own directly 100% of the capital stock of the U.S. Borrower, (y) the U.S. Borrower shall at all times own directly or indirectly 100% of the capital stock of the Bermuda Borrower and (z) subject to the proviso to the first sentence of Section 8.19(a), Holdings shall at all times own directly or indirectly (through one or more Wholly-Owned Domestic Subsidiaries (as opposed to through Foreign Subsidiaries)) all of the capital stock or other Equity Interests (to the extent owned by Holdings or any of its Subsidiaries) of each Domestic Subsidiary of Holdings. (b) Holdings shall at all times own, directly or indirectly, 100% of the capital stock or other Equity Interests of its Subsidiaries (except to the extent (v) with respect to Foreign Subsidiaries, directors' qualifying shares and other nominal amounts of shares required by applicable law to be held by Persons (other than directors) are issued from time to time (so long as the respective Subsidiary continues to constitute a Wholly-Owned Subsidiary of Holdings), (w) 100% of the capital stock or other Equity Interests of any such Subsidiary are sold, transferred or otherwise disposed of pursuant to a transaction permitted by Section 9.02, (x) less than 100% of the capital stock or other Equity Interests are acquired in the respective Subsidiary pursuant to a Permitted Acquisition which meets the criteria specified in the definition of Permitted Acquisition contained herein, (y) such capital stock or other Equity Interests are acquired pursuant to an Investment permitted by Sections 9.05(xvi) and (xx) or (z) set forth on Schedule VII). 8.15 Permitted Acquisitions. (a) Subject to the provisions of this Section 8.15 and the requirements contained in the definition of Permitted Acquisition, the U.S. Borrower and any of its Wholly-Owned Subsidiaries may from time to time effect Permitted Acquisitions, so long as (in each case except to the extent the Required Lenders otherwise specifically agree in writing in the case of a specific Permitted Acquisition): (i) no Default 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; (ii) the U.S. Borrower shall have given the Administrative Agent (on behalf of the Lenders) at least 10 Business Days' prior written notice of the proposed Permitted Acquisition; (iii) calculations are made by the U.S. Borrower of compliance with the covenants contained in Sections 9.08, 9.09, 9.10, 9.11 and 9.13 for the respective Calculation Period on a Pro Forma Basis as if the respective Permitted Acquisition (as well as all other Permitted Acquisitions and Significant Asset Sales theretofore consummated after the first day of such Calculation Period) had occurred on the first day of such Calculation Period, and such calculations shall show that such financial covenants would have been complied with if the Permitted Acquisition had occurred on the first day of such Calculation Period (for this purpose, if the first day of the respective Calculation Period occurs prior to the Initial Borrowing Date, calculated as if the covenants contained in said Sections 9.08, 9.09, 9.10, 9.11 and 9.13 had been applicable from the first day of the Calculation Period), (iv) based on good faith projections prepared by the U.S. Borrower for the period from the date of the consummation of the respective Permitted Acquisition to the date which is one year thereafter, the level of financial performance measured by the financial covenants set forth in Sections 9.08, 9.09, 9.10, 9.11 and 9.13 shall be better than or equal to such level as would be required to -110- provide that no Event of Default would exist under the financial covenants contained in such Sections 9.08, 9.09, 9.10, 9.11 and 9.13 as compliance with such financial covenants would be required through the date which is one year from the date of the consummation of the respective Permitted Acquisition; (v) all representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Permitted Acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date; (vi) the U.S. Borrower provides to the Administrative Agent (on behalf of the Lenders) as soon as available but not later than 5 Business Days after the execution thereof, a copy of any executed purchase agreement or similar agreement with respect to such Permitted Acquisition; (vii) the Maximum Permitted Consideration payable in connection with the proposed Permitted Acquisition (for such purpose, treating any related Permitted Acquisitions theretofore effected as a single Permitted Acquisition) does not exceed $50,000,000; provided that on the date of delivery to the Administrative Agent (on behalf of the Lenders) by the U.S. Borrower of an officer's certificate in connection with a proposed Permitted Acquisition (together with related calculations) showing compliance with a Leverage Ratio of 3.75:1.0 or less at such time, determined on a Pro Forma Basis as if the respective Permitted Acquisition (as well as all other Permitted Acquisitions and Significant Asset Sales theretofore consummated after the first day of the Calculation Period then last ended) had occurred on the first day of such Calculation Period, the $50,000,000 basket amount set forth above in this clause (vii) shall be increased to $100,000,000; (viii) after giving effect to such Permitted Acquisition and the payment of all post-closing purchase price adjustments required (in the good faith determination of Holdings) in connection with such Permitted Acquisition (and all other Permitted Acquisitions for which such purchase price adjustments may be required to be made) and all capital expenditures (and the financing thereof) reasonably anticipated by Holdings to be made in the business acquired pursuant to such Permitted Acquisition within the 180-day period (such period for any Permitted Acquisition, a "Post-Closing Period") following such Permitted Acquisition (and in the businesses acquired pursuant to all other Permitted Acquisitions with Post-Closing Periods ended during the Post-Closing Period of such Permitted Acquisition), the Total Unutilized Revolving Loan Commitment shall equal or exceed $75,000,000; (ix) such proposed Permitted Acquisition shall be effected in accordance with the relevant requirements of Section 8.19; (x) the U.S. Borrower determines in good faith that Holdings and its Subsidiaries taken as a whole are not likely to assume or become liable for material increased contingent liabilities as a result of such proposed Permitted Acquisition (excluding, however, Indebtedness permitted to be incurred pursuant to Section 9.04 in connection therewith); (xi) substantially all of the Acquired Entity or Business acquired pursuant to the respective Permitted Acquisition is in a Qualified Jurisdiction (for such purpose, treating as "Qualified Jurisdictions" the jurisdictions of organization of Fee Capped Foreign Subsidiary Guarantors deemed to be "Qualified Non-U.S. Obligors" pursuant to clause (i) of the proviso appearing in the definition of "Qualified Non-U.S. Obligors"), provided, however, the respective proposed Permitted Acquisition shall not be required to meet the requirements set forth above in this clause (xi) if the Maximum Permitted Consideration payable in connection with such Permitted Acquisition, when aggregated with the Maximum Permitted Consideration payable in connection with all other Permitted Acquisitions consummated after the Effective Date in which all or substantially all of the Acquired Entity or Business so acquired were not in Qualified Jurisdictions, does not -111- exceed $200,000,000; and (xii) the U.S. Borrower shall have delivered to the Administrative Agent on the date of the consummation of such proposed Permitted Acquisition, an officer's certificate executed by an Authorized Officer of the U.S. Borrower, certifying to the best of his knowledge, compliance with the requirements of preceding clauses (i) through (v), inclusive, and clauses (vii) through (xi), inclusive, and containing the calculations required by the preceding clauses (iii), (iv), (vi), (vii), (viii) and (xi). At the time of each Permitted Acquisition involving the creation or acquisition of an Unrestricted Subsidiary, or the acquisition of capital stock or other Equity Interests of any Person (other than a Restricted Subsidiary of the U.S. Borrower), all capital stock or other Equity Interests thereof created or acquired in connection with such Permitted Acquisition shall be pledged for the benefit of the Secured Creditors as, and to the extent required by, Section 8.11 and the relevant Security Documents. Each Credit Agreement Party shall cause each Subsidiary that is formed to effect, or is acquired pursuant to, a Permitted Acquisition to comply with, and to execute and deliver, all of the documentation required by, Sections 8.11 and 9.17, to the satisfaction of the Administrative Agent. The consummation of each Permitted Acquisition shall be deemed to be a representation and warranty by each Credit Agreement Party that the certifications by each Credit Agreement Party (or by one or more of its respective Authorized Officers) pursuant to Section 8.15 are true and correct and that all conditions thereto have been satisfied and that same is permitted in accordance with the terms of this Agreement, which representation and warranty shall be deemed to be a representation and warranty for all purposes hereunder, including, without limitation, Sections 6 and 10. 8.16 Maintenance of Company Separateness. Each Credit Agreement Party will, and will cause each of its Subsidiaries to, satisfy customary Company formalities, including the holding of regular board of directors' and shareholders' meetings or action by directors or shareholders without a meeting and the maintenance of Company records. Neither Holdings nor any other Credit Party shall make any payment to a creditor of any Non-Guarantor Subsidiary in respect of any liability of any Non-Guarantor Subsidiary, and no bank account of any Non-Guarantor Subsidiary shall be commingled with any bank account of Holdings or any other Credit Party. Any financial statements distributed to any creditors of any Non-Guarantor Subsidiary shall clearly establish or indicate the corporate separateness of such Non-Guarantor Subsidiary from Holdings and its other Subsidiaries. Finally, neither Holdings nor any of its Subsidiaries shall take any action, or conduct its affairs in a manner, which is likely to result in the Company existence of any Credit Agreement Party, any other Credit Party or any Non-Guarantor Subsidiaries being ignored, or in the assets and liabilities of Holdings or any other Credit Party being substantively consolidated with those of any other such Person or any Non-Guarantor Subsidiary in a bankruptcy, reorganization or other insolvency proceeding; provided, that no Foreign Credit Party organized under the laws of Bermuda shall be bound by the provisions of the last sentence of this Section 8.16. 8.17 Foreign Exchange Protection. No later than the 90th day after the Initial Borrowing Date, the Borrowers shall have delivered to the Agents a currency risk management -112- policy report detailing the foreign currency risk with respect to the operations of Holdings and its Subsidiaries, which report (and the risks detailed therein) shall be in form and substance reasonably satisfactory in all respects to the Agents. 8.18 Performance of Obligations. Each Credit Agreement Party will, and will cause each of its Subsidiaries to, perform all of its obligations under the terms of each mortgage, deed of trust, indenture, loan agreement or credit agreement and each other material agreement, contract or instrument by which it is bound, except such non-performances as, individually or in the aggregate, have not caused, and could not reasonably be expected to cause, a Default or Event of Default hereunder or a Material Adverse Effect. 8.19 Conduct of Business. (a) The Credit Agreement Parties shall take all actions so that, at all times from and after the Initial Borrowing Date, all the assets of Holdings and its Subsidiaries located within the United States, all Equity Interests in all Domestic Subsidiaries or other U.S. Persons and all or substantially all of the business of Holdings and its Subsidiaries conducted in the United States, are, in each case, owned or conducted, as the case may be, by Holdings and one or more Qualified U.S. Obligors which are not direct or indirect Subsidiaries of any Subsidiary of Holdings which is a Foreign Subsidiary, provided that if a Foreign Subsidiary (not itself created or established in contemplation of a Permitted Acquisition) is acquired pursuant to a Permitted Acquisition which Foreign Subsidiary has (either directly or through one or more Domestic Subsidiaries) assets or operations in the United States, Holdings shall have a reasonable period of time (not to exceed 60 days) to effect the transfer of U.S. assets and operations (including all Equity Interests in any Domestic Subsidiaries or other U.S. Persons held by it) of the respective Foreign Subsidiary to one or more Qualified U.S. Obligors, provided further, that the respective transfer shall not be required to be made if Holdings in good faith determines that such transfer would give rise to adverse tax consequences to Holdings and its Subsidiaries or would give rise to any material breach or violation of law or contract (in which case, Holdings and its Subsidiaries shall transfer such assets and operations at such time, if any, as such adverse tax consequences or breach or violation would not exist and, until such time, shall use good faith efforts so that any growth in the assets or operations of the entity so acquired, to the extent located in the United States, are made within one or more Qualified U.S. Obligors). (b) In addition to the foregoing requirements, the Credit Agreement Parties shall take all actions so that, at all times from and after the Initial Borrowing Date, all the assets of Holdings' Subsidiaries located within all Qualified Non-U.S. Jurisdictions, all Equity Interests in all Persons organized under any Qualified Non-U.S. Jurisdiction and all or substantially all of the business of Holdings' Subsidiaries conducted in all Qualified Non-U.S. Jurisdictions, are, in each case, owned or conducted, as the case may be, by one or more Qualified Non-U.S. Obligors which are not direct or indirect Subsidiaries of any Subsidiary of Holdings other than Qualified Obligors, provided that if a Subsidiary of Holdings organized under the laws of a jurisdiction other than any Qualified Non-U.S. Jurisdiction (not itself created or established in contemplation of the respective Permitted Acquisition) is acquired pursuant to a Permitted Acquisition which Subsidiary has (either directly or through one or more Subsidiaries) assets or operations outside Qualified Non-U.S. Jurisdictions, Holdings shall have a reasonable period of time (not to exceed 60 days) to effect the transfer of all assets and operations outside Qualified Non-U.S. Jurisdictions (including all Equity Interests in any Persons held by it which are organized under -113- the laws of one or more Qualified Non-U.S. Jurisdiction) of the respective Subsidiary to one or more Qualified Non-U.S. Obligors which are not themselves direct or indirect Subsidiaries of any Subsidiary of Holdings other than Qualified Obligors, provided further, that the respective transfer shall not be required to be made if Holdings in good faith determines that such transfer would give rise to adverse tax consequences to Holdings and its Subsidiaries or would give rise to any material breach or violation of law or contract (in which case, Holdings and its Subsidiaries shall transfer such assets and operations at such time, if any, as such adverse tax consequences or breach or violation would not exist, and until such time shall use good faith efforts so that any growth in the assets or operations of the entity so acquired, to the extent located in the Qualified Non-U.S. Jurisdictions, are made within one or more Qualified Non-U.S. Obligors which are not themselves direct or indirect Subsidiaries of any Subsidiary of Holdings other than Qualified Obligors). Notwithstanding the foregoing provisions of this Section 8.19(b), the ownership of the Bermuda Partnership (a Subsidiary which is not a Qualified Non-U.S. Obligor) of Equity Interests of Qualified Non-U.S. Obligors shall not be taken account of for purposes of determining compliance with this Section 8.19(b), so long as the Credit Agreement Parties and their respective Foreign Subsidiaries are at all times in compliance with Section 8.19(c) below. (c) The Credit Agreement Parties 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 8.19 shall not prohibit the acquisition of, or Investments in, Non-Wholly-Owned Subsidiaries as contemplated by Section 9.17(b), provided that the Equity Interest owned by Holdings or any of its Subsidiaries in such Non-Wholly-Owned Subsidiaries, to the extent organized under the laws of any Qualified Jurisdiction, shall be subject to the requirements of preceding clauses (a), (b) and (c). 8.20 Contributions; Payments. (a) Holdings will contribute as an equity contribution to the capital of the U.S. Borrower upon its receipt thereof, any cash proceeds (net of reasonable costs associated with such sale or issuance) received by Holdings from any sale or issuance of its Equity Interests or any cash capital contributions received by Holdings. (b) The U.S. Borrower will use the proceeds of all equity contributions received by it from Holdings as provided in clause (a) above to repay Loans as, and to the extent required by, Section 4.02 and/or to cause a portion thereof to be made available to the Bermuda Borrower (by way of Investment) for the purpose of repaying Loans as, and to the extent required by, Section 4.02. (c) The Bermuda Borrower will use proceeds of all Investments received by it from the U.S. Borrower (directly or indirectly through other Subsidiaries of Holdings) as contemplated by Section 8.20(b) to repay Loans as, and to the extent required by, Section 4.02. 8.21 Post-Closing Refinancing. Within 60 days following the Initial Borrowing Date, Holdings and the U.S. Borrower shall have consummated the Post-Closing Refinancing in -114- accordance with the relevant Existing Senior Notes Indentures, the Refinancing Documents therefor and all applicable laws. 8.22 Asset Sale Requirements. The Credit Agreement Parties shall, and shall cause their respective Domestic Subsidiaries to, effect Contemplated Asset Sales in accordance with the requirements of Section 9.02(xviii) which shall generate Net Sale Proceeds of at least $150.0 million during the period commencing on March 29, 2003 and ending on December 31, 2005, provided that at least $100.0 million of such Net Sale Proceeds shall have been generated by Contemplated Asset Sales effected on or prior to December 31, 2004; provided further, however, that (i) the amount of the Net Sale Proceeds required to be generated from Contemplated Asset Sales pursuant to this Section 8.22 during any period contemplated above shall be reduced on a dollar-for-dollar basis by the amount of any cash capital contributions made to Holdings (including pursuant to the Capital Call Agreement), to the extent such cash proceeds are actually applied as a mandatory repayment and/or commitment reduction in accordance with the requirements of Section 4.02(e), (ii) the amount of the Net Sale Proceeds required to be generated from Contemplated Asset Sales pursuant to this Section 8.22 during any period contemplated above shall be reduced on a dollar-for-dollar basis by an amount equal to 50% of the aggregate principal amount of Term Loans repaid in accordance with the requirements of Section 4.01 during such period (except to the extent constituting a notified voluntary repayment of Term Loans giving rise to a reduction as contemplated by subclause (iii)(I) below), and (iii) the amount of the Net Sale Proceeds required to be generated from Contemplated Asset Sales pursuant to this Section 8.22 during any period contemplated above shall be reduced on a dollar-for-dollar basis by the sum of (I) the amount of cash (not to exceed the Retained Excess Cash Flow Amount then in effect) actually used to repay Term Loans pursuant to Section 4.01 during such period (and notified to the Administrative Agent as having been so used for the purpose of reducing the amount of the Net Sale Proceeds required from Contemplated Asset Sales as otherwise provided above) plus (II) in the event that the Applicable Prepayment Percentage of Excess Cash Flow used to determine any required payment made pursuant to Section 4.02(g) during such period is 75%, the amount of cash (not to exceed 25% of Excess Cash Flow for the relevant Excess Cash Flow Payment Period) actually applied as a mandatory repayment and/or commitment reduction in accordance with the requirements of Section 4.02(g) during such period. 8.23 Margin Stock. Each Credit Agreement Party shall take all actions so that at all times the fair market value of all Margin Stock (other than treasury stock) owned by Holdings and its Subsidiaries shall not exceed $2,500,000 (or, if the fair market value of Margin Stock owned by Holdings and its Subsidiaries exceeds $2,500,000 solely as a result of an increase in the trading price of such Margin Stock (and not as a result of supplemental purchases of Margin Stock), the lesser of (x) the fair market value of all such Margin Stock and (y) $10,000,000). So long as the fair market value of Margin Stock owned by Holdings and its Subsidiaries does not exceed $10,000,000, all Margin Stock at any time owned by Holdings and its Subsidiaries shall not constitute Collateral and no security interest shall be granted therein pursuant to any Credit Document. Without excusing any violation of the first sentence of this Section 8.23, if at any time the fair market value of all Margin Stock (other than treasury stock) owned by Holdings and its Subsidiaries 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 -115- to the Lenders appropriate completed forms (including, without limitation, Forms G-3 and U-1, as appropriate) establishing compliance with the Margin Regulations. If at any time any Margin Stock is required to be pledged as a result of the provisions of the immediately preceding sentence, repayments of outstanding Obligations shall be required to be made, and subsequent Credit Events shall only be permitted, in compliance with the applicable provisions of the Margin Regulations. 8.24 Special Provisions Regarding Special Colombian Put Notes. (a) Within 60 days following the Initial Borrowing Date, the Collateral Agent shall be entitled to demand from the Bermuda Borrower, by means of written notice, the execution of one or more "mirror" promissory notes substantially in the form of Exhibit N (the "Special Colombian Put Notes") in an aggregate principal amount equal to the guaranty obligations of the Columbian Subsidiary Guarantors pursuant to the Foreign Subsidiaries Guaranty, each of which Special Colombian Put Notes shall be delivered to the Collateral Agent. (b) Upon the execution of any Special Colombian Put Note, the Bermuda Borrower, the Administrative Agent, the Collateral Agent and the Colombian Subsidiary Guarantors shall execute an agreement, in form and substance acceptable to the Collateral Agent (the "Special Colombian Put Note Agreement"), pursuant to which the Collateral Agent and/or the Administrative Agent shall have the right to demand that the Colombian Subsidiary Guarantors purchase (on a joint and several basis) any and all Special Colombian Put Notes at par (plus accrued interest) and in U.S. Dollars. (c) Upon execution of the Special Colombian Put Note Agreement, together with any and all amendments reasonably requested by the Collateral Agent to the Foreign Subsidiaries Guaranty and the Foreign Security Documents to which the Columbian Subsidiary Guarantors are a party, (i) the Colombian Subsidiary Guarantors shall be released from the Foreign Subsidiaries Guaranty and the Colombian Subsidiary Guarantors' obligations under the Foreign Subsidiaries Guaranty shall be superseded by the Special Colombian Put Note Agreement and (ii) the joint and several obligations of the Colombian Subsidiary Guarantors under the Special Colombian Put Note Agreement shall be secured on the same basis as the obligations of the Colombian Subsidiary Guarantors under the Foreign Subsidiaries Guaranty were formerly so secured. (d) The Bermuda Borrower shall cause the Colombian Subsidiary Guarantors to execute the required amendment(s) described above, which amendments shall be in full force and effect on the date of execution of the Special Colombian Put Note Agreement. SECTION 9. Negative Covenants. Each Credit Agreement Party hereby covenants and agrees that as of the Effective Date and thereafter for so long as this Agreement is in effect and until the Total Commitment has terminated, no Letters of Credit, Bank Guaranties or Notes are outstanding and the Loans, together with interest, Fees and all other Obligations (other than any indemnities described in Section 13.13 which are not then due and payable) incurred hereunder, are paid in full: 9.01 Changes in Business; etc. (a) Holdings and its Subsidiaries will not engage in any business other than a Permitted Business. -116- (b) Notwithstanding the foregoing, Holdings will not engage in any business and will not own any significant assets (other than its ownership of the capital stock of the U.S. Borrower) or have any liabilities (other than those liabilities for which it is responsible under this Agreement, the Documents to which it is a party and any Shareholder Subordinated Note); provided that Holdings may (i) issue Shareholder Subordinated Notes, shares of Holdings Common Stock and options and warrants to purchase Holdings Common Stock, (ii) engage in those activities associated with expenses paid with Dividends made by the U.S. Borrower pursuant to Section 9.06(iv) and (iii) engage in those activities that are incidental to (x) the maintenance of its corporate existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents to which it is a party. (c) Notwithstanding the foregoing, the Bermuda Partnership will not engage in any business and will not own any significant assets or any cash or Cash Equivalents (other than its ownership of Equity Interests of 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 same are promptly (and in any event within one Business Day of receipt thereof) loaned, distributed and/or contributed, subject to Section 9.01(d), to its Subsidiaries and/or Affiliates in accordance with the requirements of Section 9.05 of this Agreement, and (III) engage in those activities that (i) are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, the Credit Documents to which it is a party and (ii) are otherwise expressly permitted by this Agreement (other than pursuant to preceding Section 9.01(a)) and the other Credit Documents. (d) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement (including, without limitation, Sections 9.02 and 9.05): (i) the Bermuda Partnership Partners shall not collectively own or hold (x) Property with a Fair Market Value in excess of $20,000,000 at any time or (y) cash or Cash Equivalents in an aggregate in excess of $5,000,000; provided that (v) all assets owned by the Bermuda Partnership Partners on the Effective Date (which assets shall have a net book value on the Effective Date not to exceed $15,000,000) shall be excluded for purposes of such determination, (w) any cash and Cash Equivalents loaned and/or contributed to such Persons by Affiliates of such Persons shall be excluded for purposes of such determination, so long as same are promptly (and in any event within one Business Day) loaned and/or distributed to other Affiliates of such Persons (other than another Bermuda Partnership Partner) in accordance with the requirements of this Agreement, (x) any inventory owned by the Bermuda Partnership Partners shall be excluded for purposes of such determination, (y) any Equity Interests in the Bermuda Partnership which are held by the Bermuda Partnership Partners shall be excluded for purposes of such determination and (z) any intercompany receivable owed to a Bermuda Partnership Partner by Dole Settlement Company shall be excluded for purposes of such -117- determination, so long as (I) both Dole Settlement Company (as obligor) and the respective Bermuda Partnership Partner (as obligee) are parties to the Intercompany Subordination Agreement and (II) such intercompany receivable is at all times subject to the subordination provisions contained in the Intercompany Subordination Agreement; (ii) no Bermuda Partnership Partner shall merge, consolidate with or be liquidated or dissolved into any other Person, provided, however, that any Bermuda Partnership Partner may merge or consolidate with or into any other Wholly-Owned Domestic Subsidiary of the U.S. Borrower formed for the sole purpose of reincorporating such Bermuda Partnership Partner in a different jurisdiction, so long as the surviving entity of such merger or consolidation remains a "Bermuda Partnership Partner" for all purposes of this Agreement and the other Credit Documents (subject to and bound by all terms and covenants herein and therein applicable to a "Bermuda Partnership Partner"); (iii) no Bermuda Partnership Partner shall engage in any business other than a business which is the same or reasonably related to the business in which such Bermuda Partnership Partner is engaged on the Effective Date; (iv) no later than one Business Day following the date upon which any Bermuda Partnership Partner receives or generates an Account (as defined in the U.S. Security Agreement), such Account shall be sold on a non-recourse basis to Dole Settlement Company (at a discount of 2%) in exchange for a note payable (which shall at all times be subject to the subordination provisions contained in the Intercompany Subordination Agreement) and/or the assumption of a payable or payables owing by such Bermuda Partnership Partner to its relevant Subsidiary which sells fruit, inventory or other Property, or provides shipping services, to such Bermuda Partnership Partner (which assumed liabilities shall also be subject to the subordination provisions contained in the Intercompany Subordination Agreement); and (v) upon the occurrence and during the continuance of any Specified Default or any Event of Default under Section 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. (e) Notwithstanding the foregoing, the Excluded Domestic Subsidiary will not engage in any business and will not own any assets or have any liabilities; provided that an Excluded Domestic Subsidiary may engage in those activities that are incidental to (x) the maintenance or termination of its corporate existence in compliance with applicable law, and (y) legal, tax and accounting matters in connection with any of the foregoing activities. -118- (f) Notwithstanding the foregoing, no Excluded Bermuda Insurance Company will engage in any business (other than the insurance related business conducted by it on the Effective Date) and will not own any Equity Interests or any other significant assets (other than assets used in the conduct of its business as conducted on the Effective Date) or have any liabilities (other than those liabilities under the Documents to which it is a party and those liabilities incurred in the ordinary course of its business as conducted on the Effective Date); provided that an Excluded Bermuda Insurance Company may engage in those activities that are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents to which it is a party. (g) Notwithstanding anything to the contrary contained above in this Section or elsewhere in this Agreement (but subject to subclause (5) of Section 13.19), at no time shall Holdings or any Subsidiary of Holdings be an obligor or an obligee with respect to any Intercompany Debt, unless each obligor (including each Person which is a guarantor thereof) and each obligee with respect thereto are party to the Intercompany Subordination Agreement; provided however, that the provisions hereof shall not apply to those Non-Wholly Owned Subsidiaries listed on Part D of Schedule XIII. (h) Notwithstanding the foregoing, no Excluded Foreign Subsidiary will engage in any business or own any assets (other than (x) Equity Interests of another Excluded Foreign Subsidiary and (y) immaterial assets with a Fair Market Value not exceeding $25,000) or have any liabilities; provided that (I) notwithstanding the foregoing, an Excluded Foreign Subsidiary shall be permitted to engage in the business conducted by such Excluded Foreign Subsidiary on the Initial Borrowing Date and to own assets and have liabilities in excess of any amounts permitted above, so long as such Excluded Foreign Subsidiary is merged or consolidated into or with another Foreign Subsidiary that is a Qualified Obligor organized in the jurisdiction of organization of such Excluded Foreign Subsidiary within 180 days following the Initial Borrowing Date and (II) any Excluded Foreign Subsidiary may engage in those activities that are incidental to (x) the maintenance or termination of its corporate existence in compliance with applicable law and (y) legal, tax and accounting matters in connection with any of the foregoing activities. 9.02 Consolidation; Merger; Sale or Purchase of Assets; etc. No Credit Agreement Party will, nor will permit any of its respective Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person or agree to do any of the foregoing at any future time, except that the following shall be permitted: -119- (i) the U.S. Borrower and its Subsidiaries may lease (as lessee) or license (as licensee) real or personal property (including intellectual property) in the ordinary course of business (so long as any such lease or license does not create a Capitalized Lease Obligation); (ii) Capital Expenditures by the U.S. Borrower and its Subsidiaries to the extent not in violation of Section 9.12; (iii) Investments permitted pursuant to Section 9.05; (iv) the U.S. Borrower and its Subsidiaries may, in the ordinary course of business, sell or otherwise dispose of assets (excluding capital stock of, or other Equity Interests in, Subsidiaries and joint ventures) which, in the reasonable opinion of such Person, are obsolete, uneconomic or worn-out; (v) the U.S. Borrower and its Subsidiaries may sell assets (other than (I) the capital stock or other Equity Interests of any Wholly-Owned Subsidiary unless all of the capital stock or other Equity Interests of such Wholly-Owned Subsidiary are sold in accordance with this clause (v) and (II) assets subject to a Contemplated Asset Sale (which shall be governed by Section 9.02(xviii)), so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale is in an arm's-length transaction and the U.S. Borrower or the respective Subsidiary receives at least Fair Market Value, (x) except for customary post-closing adjustments (to be paid in cash within 180 days following the closing of the respective sale or disposition), at least 75% of the total consideration received by the 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 $10,000,000 (taking the Fair Market Value of any non-cash consideration) in any Fiscal Year of Holdings shall not be subject to the minimum cash requirement set forth above in this subclause (x)), (y) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 4.02(c) and (z) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (v) shall not exceed $50,000,000 in any Fiscal Year of Holdings; (vi) 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; (vii) 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, in each case so long as no such grant otherwise affects the Collateral Agent's security interest in the asset or property subject thereto; (viii) subject to Sections 9.01(c) and (d), transfers of assets (u) pursuant to the Foreign Asset Transfer, (v) among the Qualified U.S. Obligors (other than Holdings), (w) among the Qualified Non-U.S. Obligors, (x) by any Subsidiary of the U.S. Borrower to -120- any Qualified U.S. Obligor (other than Holdings), (y) by any Foreign Subsidiary of the U.S. Borrower to any Qualified Non-U.S. Obligor and (z) by any Foreign Subsidiary of the U.S. Borrower (other than a Qualified Non-U.S. Obligor) to any Wholly-Owned Foreign Subsidiary of the U.S. Borrower, in the case of any such transfer, so long as (I) no Specified Default and no Event of Default then exists or would exist immediately after giving effect to the respective transfer, (II) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the relevant Security Documents in the assets so transferred shall remain in full force and effect and perfected and enforceable (to at least the same extent as in effect immediately prior to such transfer) and (III) if the respective transferor is party to a Guaranty, the nature and scope of the obligations of such transferor under its Guaranty are substantially identical to the nature and scope of the obligations of the respective transferee under its Guaranty; (ix) subject to Sections 9.01(c) and (d), (x) any Domestic Subsidiary of the U.S. 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 a U.S. Subsidiary Guarantor is the surviving corporation of such merger, consolidation or liquidation), (y) any Qualified Non-U.S. Obligor may be merged, consolidated or liquidated with or into any other Qualified Non-U.S. Obligor and (z) any Foreign Subsidiary of the U.S. Borrower (other than a Qualified Non-U.S. Obligor) may be merged, consolidated or liquidated with or into any Wholly-Owned Foreign Subsidiary of the U.S. Borrower, so long as such Wholly-Owned Foreign Subsidiary is the surviving corporation of such merger, consolidation or liquidation; provided that any such merger, consolidation or liquidation shall only be permitted pursuant to this clause (ix), so long as (I) no Specified Default and no Event of Default then exists or would exist immediately after giving effect thereto, (II) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors in the assets (and Equity Interests) of any such Person subject to any such transaction shall remain in full force and effect and perfected and enforceable (to at least the same extent as in effect immediately prior to such merger, consolidation or liquidation) and (III) if the Person to be merged, consolidated or liquidated into another Person as contemplated above is party to a Guaranty, the nature and scope of the obligations of such Person under its Guaranty are substantially identical to the nature and scope of the obligations of such other Person under its Guaranty; (x) subject to Sections 9.01(c) and (d), the U.S. Borrower and its Subsidiaries may transfer inventory in a non-cash or cash transfer to Wholly-Owned Subsidiaries of the U.S. Borrower that are not Qualified Obligors, in each case so long as (I) any such transfer is made in the ordinary course of its business and consistent with past practice of the U.S. Borrower and its Subsidiaries as in effect on the Effective Date, (II) if the respective transfer is being made to any Credit Party, all actions needed to maintain the perfection, priority and enforceability of the security interests, if any, of the Collateral Agent in the assets so transferred are taken at the time of the respective transfer, (III) the U.S. Borrower reasonably determines that the transfer is not reasonably likely to be adverse to the interests of the Lenders in any material respect and (IV) no Specified Default and no Event of Default then exists or would exist immediately after giving effect to the respective transfer; -121- (xi) subject to Sections 9.01(c) and (d), so long as no Specified Default and no Event of Default exists at the time of the respective transfer or immediately after giving effect thereto, Qualified Obligors shall be permitted to transfer additional assets (other than inventory, cash, Cash Equivalents and Equity Interests in any Credit Party) to other Subsidiaries of the 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; (xii) the U.S. Borrower and its Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are useful in a Permitted Business; (xiii) each of the Borrowers and the Subsidiary Guarantors shall be permitted to make Permitted Acquisitions, so long as such Permitted Acquisitions are effected in accordance with the requirements of Section 8.15; (xiv) the Acquisition may be consummated in accordance with the relevant requirements of Section 5.08(a); (xv) the Sale-Leaseback Transaction may be consummated on the Initial Borrowing Date in accordance with the relevant requirements of Section 5.09 and the definition thereof; (xvi) each of the U.S. Borrower and its Subsidiaries may sell or liquidate Cash Equivalents, in each case for cash at fair market value (as reasonably determined by the U.S. Borrower or the respective Subsidiary); (xvii) the U.S. Borrower and its Subsidiaries may sell inventory to their respective customers in the ordinary course of business; (xviii) 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) the consideration therefor consists solely of cash and/or Permitted Installment Notes (to the extent same may be issued in accordance with the definition thereof), (iv) at least 50% of the total consideration received by the U.S. Borrower or such Subsidiary is paid in cash at the time of the closing of such sale, and (v) the Net Sale Proceeds therefrom are applied as required by Section 4.02(c); and (xix) the U.S. Borrower and its 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) 100% of the Net Sale Proceeds therefrom are applied as a mandatory repay- -122- ment and/or commitment reduction in accordance with the requirements of Section 4.02(c) (without giving effect to any reinvestment rights contained therein). Notwithstanding anything to the contrary contained above in this Section 9.02, in no event shall Holdings or any of its Subsidiaries enter into any sale-leaseback transactions, except in accordance with Sections 9.02(xv) and (xix) above. The foregoing provisions of this Section 9.02 are subject to continued compliance by the Credit Agreement Parties and their Subsidiaries with the requirements of Sections 8.19, 9.01 and 9.17. To the extent the Required Lenders waive the provisions of this Section 9.02 with respect to the sale or other disposition of any Collateral, or any Collateral is sold or otherwise disposed of as permitted by this Section 9.02, such Collateral (unless transferred to Holdings or a Subsidiary thereof) shall be sold or otherwise disposed of free and clear of the Liens created by the Security Documents and the Administrative Agent shall take such actions (including, without limitation, directing the Collateral Agent to take such actions) as are appropriate in connection therewith. 9.03 Liens. No Credit Agreement Party will, nor will permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of Holdings or any of its Subsidiaries, whether now owned or hereafter acquired, or sell any such property or assets subject to an understanding or agreement, contingent or otherwise, to repurchase such property or assets (including sales of accounts receivable or notes with recourse to Holdings or any of its Subsidiaries) or assign any right to receive income or permit the filing of any financing statement under the UCC or any other similar notice of Lien under any similar recording or notice statute; provided that the provisions of this Section 9.03 shall not prevent the creation, incurrence, assumption or existence of the following (Liens described below are herein referred to as "Permitted Liens"): (i) inchoate Liens for taxes, assessments or governmental charges or levies not yet due and payable or Liens for taxes, assessments or governmental charges or levies being contested in good faith and by appropriate proceedings for which adequate reserves have been established in accordance with U.S. GAAP; (ii) Liens in respect of property or assets of the U.S. Borrower or any of its Subsidiaries imposed by law which were incurred in the ordinary course of business and which have not arisen to secure Indebtedness for borrowed money, such as carriers', warehousemen's and mechanics' Liens, statutory landlord's Liens, maritime Liens and other similar Liens arising in the ordinary course of business, and which either (x) do not in the aggregate materially detract from the value of such property or assets or materially impair the use thereof in the operation of the business of the 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) Liens created by or pursuant to this Agreement and the Security Documents; -123- (iv) Liens in existence on the Initial Borrowing Date which are listed, and the property subject thereto described, in Schedule IX, but only to the respective date, if any, set forth in such Schedule IX for the removal, replacement and termination of any such Liens, plus renewals, replacements and extensions of such Liens, provided that (x) the aggregate principal amount of the Indebtedness, if any, secured by such Liens does not increase from that amount outstanding at the time of any such renewal, replacement or extension and (y) any such renewal, replacement or extension does not encumber any additional assets or properties of the 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) pledged, paid and/or deposited by the U.S. Borrower or any of its Subsidiaries pursuant to this clause (v) shall not exceed $25,000,000 (net of any insurance proceeds actually received (and not returned) by the U.S. Borrower and its Subsidiaries in connection therewith) at any time; (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 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 sub-clauses (y) and (z) shall not exceed $25,000,000 in the aggregate (it being understood that letters of credit and bank guaranties issued in support of customs bonds, licensing arrangements and similar obligations do not constitute Property pledged or deposited to support such obligations); (vii) licenses, sublicenses, leases or subleases granted to third Persons in the ordinary course of business not interfering in any material respect with the business of the 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 Holdings or any of its Subsidiaries; -124- (ix) Liens arising from or related to precautionary UCC financing statements regarding operating leases entered into by the U.S. Borrower and its Subsidiaries in the ordinary course of business; (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(iv), provided that (x) such Liens only serve to secure the payment of Indebtedness arising under such Capitalized Lease Obligation and (y) the Lien encumbering the asset giving rise to the Capitalized Lease Obligation does not encumber any other asset of the 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 30 days after the respective purchase) of assets acquired after the Initial Borrowing Date by the U.S. Borrower and its Subsidiaries, provided that (x) any such Liens attach only to the assets so purchased, (y) the Indebtedness secured by any such Lien does not exceed 100% of the Fair Market Value or the purchase price of the property being purchased at the time of the incurrence of such Indebtedness and (z) the Indebtedness secured thereby is permitted to be incurred pursuant to Section 9.04(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(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; (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(vii) to the extent such Liens comply with clause (b)(ii) of the definition of Permitted Refinancing Indebtedness; -125- (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(viii); (xviii) Liens over promissory notes evidencing grower loans pledged in favor of financial institutions securing Indebtedness permitted to be incurred pursuant to Section 9.04(xix)(x); 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 encumber any Property of the U.S. Borrower or any of its Subsidiaries the Fair Market Value of which exceeds the amount of the Indebtedness or other obligations secured by such Property or 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 $50,000,000 in the aggregate for all such Liens. In connection with the granting of Liens of the type described in clauses (iv), (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 any Credit Agreement Party, to take any actions deemed appropriate by it in connection therewith (including, without limitation, by executing appropriate lien releases or lien subordination agreements in favor of the holder or holders of such Liens, in either case solely with respect to the assets subject to such Liens). 9.04 Indebtedness. No Credit Agreement Party will, nor will permit any of its Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness, except: (i) Indebtedness incurred pursuant to this Agreement and the other Credit Documents; (ii) Scheduled Existing Indebtedness outstanding on the Initial Borrowing Date and listed on Schedule IV, without giving effect to any subsequent extension, renewal or refinancing thereof, except that Scheduled Existing Indebtedness may be refinanced through one or more issuances of Permitted Refinancing Indebtedness in accordance with Section 9.04(vii) below; (iii) Indebtedness of the Borrowers under Interest Rate Protection Agreements entered into to protect them against fluctuations in interest rates in respect of Indebtedness otherwise permitted under this Agreement, so long as the entering into of such Interest Rate Protection Agreements are bona fide hedging activities and are not for speculative purposes; (iv) Capitalized Lease Obligations and Indebtedness of the U.S. Borrower and its Subsidiaries representing purchase money Indebtedness secured by Liens permitted pursuant to Section 9.03(xi), provided that (i) all such Capitalized Lease Obligations are permitted under Section 9.11 and (ii) the sum of (x) the aggregate Capitalized Lease Obligations outstanding at any time plus (y) the aggregate principal amount of such purchase money Indebtedness outstanding at any time shall not exceed $25,000,000; -126- (v) intercompany Indebtedness of the U.S. Borrower and its Subsidiaries to the extent permitted by Section 9.05(vi) and (xvii); (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), provided that (x) such Indebtedness 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 clause (vi) at any time (such Indebtedness described above in this Section 9.04(vi) being called "Permitted Acquired Debt"), when added to the aggregate principal amount of Permitted Refinancing Indebtedness outstanding pursuant to Section 9.04(vii) at any time (except to the extent incurred to refinance Scheduled Existing Indebtedness, Indebtedness under the HQ Lease Agreements as described in Section 9.04(xxii) below and successive refinancings thereof), shall not exceed $50,000,000; (vii) Permitted Refinancing Indebtedness, so long as (x) no Specified Default or Event of Default is in existence at the time of the incurrence of such Permitted Refinancing Indebtedness and immediately after giving effect thereto and (y) the aggregate principal amount of Permitted Refinancing Indebtedness outstanding pursuant to this clause (vii) at any time (except to the extent incurred to refinance Scheduled Existing Indebtedness, Indebtedness under the HQ Lease Agreements as described in Section 9.04(xxii) below and successive refinancings thereof), when added to the aggregate principal amount of Permitted Acquired Debt outstanding pursuant to Section 9.04(vi) at any time, shall not exceed $50,000,000; (viii) Indebtedness of Foreign Subsidiaries of the U.S. Borrower (other than the Bermuda Partnership) under lines of credit to any such Foreign Subsidiary from Persons other than Holdings or any of its Subsidiaries, the proceeds of which Indebtedness are used for such Foreign Subsidiary's working capital and other general corporate purposes, provided that the aggregate principal amount of all such Indebtedness outstanding at any time for all such Foreign Subsidiaries shall not exceed $50,000,000; (ix) Indebtedness of Holdings under Shareholder Subordinated Notes issued pursuant to Section 9.06(ii), so long as the aggregate outstanding principal amount of Shareholder Subordinated Notes does not at any time exceed $5,000,000; (x) additional unsecured Indebtedness of the U.S. Borrower consisting of unsecured guarantees by such Borrower of (x) obligations (which guaranteed obligations do not themselves constitute Indebtedness) of one or more Wholly-Owned Subsidiaries of the U.S. Borrower, (y) leases pursuant to which one or more Wholly-Owned Subsidiaries of the U.S. Borrower are the respective lessees and (z) Indebtedness of Wholly-Owned Subsidiaries of the U.S. Borrower of the type permitted pursuant to Section 9.04(xiv); (xi) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, so long as such Indebtedness is extinguished within five Business Days of the incurrence thereof; -127- (xii) Indebtedness in respect of (x) Other Hedging Agreements to the extent permitted by Section 9.05(xii)(x) and (y) Commodity Agreements to the extent permitted by Section 9.05(xii)(y); (xiii) (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 $25,000,000 at any time outstanding and (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 $25,000,000 at any time outstanding; (xiv) 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 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), provided that the maximum assumable liability (as measured by the reserves reasonably established on such Person's financial statements) in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the U.S. Borrower and its Subsidiaries in connection with such dispositions; (xv) 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 clause (viii) above), so long as the aggregate amount of the Contingent Obligations of the U.S. Borrower pursuant to this clause (xv) does not exceed $25,000,000 at any time; (xvi) (I) unsecured Indebtedness of the U.S Borrower incurred under the New Senior Notes and the New Senior Notes Indenture and of the U.S. Subsidiary Guarantors (and so long as same remain U.S. Subsidiary Guarantors) under subordinated guarantees of the obligations of the U.S. Borrower provided under the New Senior Notes Documents to which they are a party, in an aggregate principal amount not to exceed $475,000,000 (less the amount of any repayments of principal thereof after the Initial Borrowing Date), (II) unsecured Indebtedness of the U.S Borrower incurred under the Existing 2009 Senior Notes and the Existing 2009 Notes Indenture and of the U.S. Subsidiary Guarantors (and so long as same remain U.S. Subsidiary Guarantors) under subordinated guarantees of the obligations of the U.S. Borrower provided under the Existing 2009 Senior Notes Documents to which they are a party, in an aggregate principal amount not to exceed $400,000,000 (less the amount of any repayments of principal thereof after the Initial Borrowing Date), (III) unsecured Indebtedness of the U.S Borrower incurred under the Existing 2013 Senior Notes and the Existing 2013 Notes Indenture and of the U.S. -128- Subsidiary Guarantors (and so long as same remain U.S. Subsidiary Guarantors) under subordinated guarantees of the obligations of the U.S. Borrower provided under the Existing 2013 Senior Notes Documents to which they are a party, in an aggregate principal amount not to exceed $155,000,000 (less the amount of any repayments of principal thereof after the Initial Borrowing Date) and (IV) at all times prior to the Post-Closing Refinancing, unsecured Indebtedness of the U.S Borrower under the Existing Senior Notes To Be Refinanced in an aggregate principal amount not to exceed $510,000,000 (less the amount of any repayments of principal thereof after the Initial Borrowing Date); (xvii) Indebtedness of the U.S. Borrower and its Subsidiaries representing obligations in existence on the Effective Date that become Indebtedness after the Effective Date as a result of the implementation of FASB Interpretation No. 46 ("Consolidation of Variable Interest Entities") as in effect on the Effective Date; (xviii) 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) and required by governmental laws, orders and regulations in an aggregate amount not to exceed $25,000,000 at any time; (xix) (x) Indebtedness of Foreign Subsidiaries incurred in connection with grower loan programs in an aggregate principal amount not to exceed $50,000,000 at any time outstanding and (y) unsecured Indebtedness of the U.S. Borrower evidenced by a guaranty of Indebtedness permitted pursuant to preceding subclause (x); (xx) Indebtedness of the U.S. Borrower or any of its Subsidiaries incurred in connection with vehicle inventory loans in an aggregate principal amount not to exceed $5,000,000 at one time outstanding; (xxi) Indebtedness of the U.S. Borrower which may be deemed to exist under its non-qualified excess savings plan for employees; (xxii) obligations of the U.S. Borrower and the HQ Lessee (as defined in the U.S. Security Agreement) under the HQ Lease Agreements in an aggregate amount (exclusive of accrued interest or its equivalent) not to exceed $55,000,000; and (xxiii) 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 $50,000,000 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. 9.05 Advances; Investments; Loans. No Credit Agreement Party will, nor will permit any of its Subsidiaries to, directly or indirectly, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other Equity Interest in, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash Equivalents (each of the foregoing an "Investment" and, collectively, "Investments"), except: -129- (i) the U.S. Borrower and its Subsidiaries may acquire and hold cash and Cash Equivalents; provided, however, that at any time Revolving Loans and/or Swingline Loans are outstanding, the aggregate amount of Unrestricted Cash held by the U.S. Borrower and its Subsidiaries shall not exceed $50,000,000 for any period of three consecutive Business Days; (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 entered into in compliance with Section 9.04(iii) shall be permitted; (v) (x) Investments constituting Intercompany Scheduled Existing Indebtedness in existence on the Initial Borrowing Date (and any refinancings thereof permitted pursuant to Section 9.04(vii) and consistent with the definition of Permitted Refinancing Indebtedness) and (y) such other Investments in existence on the Initial Borrowing Date and listed on Schedule VI (without giving effect to any additions thereto or replacements thereof); provided that any additional Investments made with respect to the Investments described in preceding subclause (y) shall be permitted only if independently justified under the other provisions of this Section 9.05; (vi) (t) Intercompany Distribution Transactions in the form of intercompany loans may be made in accordance with the requirements of Section 5.09, (u) Qualified U.S. Obligors (other than Holdings) may make intercompany loans to each other, (v) Qualified Non-U.S. Obligors may make intercompany loans to each other, (w) Qualified U.S. Obligors (other than Holdings) may make intercompany loans to any Qualified Non-U.S. Obligor, (x) Qualified Obligors and Foreign Subsidiary Guarantors that are not Qualified Obligors may make intercompany loans to any Foreign Subsidiary of the U.S. Borrower that is not a Qualified Obligor, (y) any Wholly-Owned Foreign Subsidiary of the U.S. Borrower may make intercompany loans to any Qualified Obligor and (z) Non-Guarantor Subsidiaries may make intercompany loans to each other and to any Foreign Credit Party, provided that (I) unless the respective obligor under such intercompany loan reasonably determines that the execution, delivery and performance of an Intercompany Note is prohibited by, or that such Intercompany Note would not be enforceable against such obligor under, applicable local law, any such intercompany loan made pursuant to this clause (vi) (other than any such loan made to a Non-Wholly Owned Subsidiary) shall be evidenced by an Intercompany Note, (II) at no time shall the aggregate outstanding principal amount of all such intercompany loans made pursuant to subclause (w) of this clause (vi) above (exclusive of loans made to Qualified Non-U.S. Obligors which are -130- promptly on-lent by such Qualified Non-U.S. Obligors to Foreign Subsidiaries that are not Qualified Obligors in reliance on subclause (x) above), when added to the aggregate amount of cash equity contributions made in pursuant to (and in reliance on) Section 9.05(viii)(y), exceed $100,000,000 (determined without regard to write-downs or write-offs thereof), (III) at no time shall the aggregate outstanding principal amount of all such intercompany loans made pursuant to subclause (x) of this clause (vi) above, when added to the aggregate amount of cash equity contributions made pursuant to (and in reliance on) Section 9.05(viii)(z), exceed $100,000,000 (determined without regard to write-downs or write-offs thereof), (IV) no intercompany loans may be made pursuant to subclause (w) or (x) of this clause (vi) at any time any Specified Default or any Event of Default is in existence (or would be in existence after giving effect thereto), (V) subject to subclause (5) of Section 13.19 and the exception specified in the proviso to Section 9.01(g), each intercompany loan made pursuant to this clause (vi) shall be subject to subordination as, and to the extent required by, the Intercompany Subordination Agreement and (VI) any intercompany loans made pursuant to this clause (vi) shall cease to be permitted hereunder if the obligor or obligee thereunder ceases to constitute a Qualified Obligor or a Foreign Subsidiary of the U.S. Borrower as contemplated above; (vii) (x) loans by the U.S. Borrower and its Subsidiaries to officers, employees and directors of Holdings and its Subsidiaries for bona fide business purposes, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount not to exceed $5,000,000 at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall be permitted and (y) advances of reimbursable expenses by the U.S. Borrower and its Subsidiaries to officers, employees and directors of Holdings and its Subsidiaries for bona fide purposes, in each case incurred in the ordinary course of business; (viii) (u) any Wholly-Owned Foreign Subsidiary of the U.S. Borrower may make cash common equity contributions to any Qualified Obligor, (v) any Qualified U.S. Obligor may make cash common equity contributions to any of its direct Wholly-Owned Subsidiaries that is a Qualified U.S. Obligor, (w) any Qualified Non-U.S. Obligor may make cash common equity contributions to any of its direct Wholly-Owned Subsidiaries that is a Qualified Non-U.S. Obligor, (x) any Non-Guarantor Subsidiary may make cash common equity contributions to any of its direct Wholly-Owned Subsidiaries that is a Non-Guarantor Subsidiary or a Foreign Credit Party, (y) any Qualified U.S. Obligor may make cash common equity contributions to any of its direct Wholly-Owned Subsidiaries that is Qualified Non-U.S. Obligor, and (z) any Qualified Obligor and any Foreign Subsidiary Guarantor that is not a Qualified Obligor may make cash common equity contributions to any of their respective direct Foreign Subsidiaries that is not a Qualified Obligor; provided that (I) at no time shall the aggregate amount of the cash common equity contributions made pursuant to subclause (y) of this clause (viii) (exclusive of cash contributions made to a Qualified Non-U.S. Obligor which are promptly contributed, in turn, to a Foreign Subsidiary of such Qualified Non-U.S. Obligor that is not a Qualified Obligor in reliance on subclause (z) above), when added to the aggregate outstanding principal amount of all intercompany loans made pursuant to subclause (w) of clause (vi) above (determined without regard to write-downs or write-offs thereof), exceed $100,000,000, (II) at no time shall the aggregate amount of the cash common equity -131- contributions made pursuant to subclause (z) of this clause (viii), when added to the aggregate outstanding principal amount of all intercompany loans made pursuant to subclause (x) of clause (vi) above (determined without regard to write-downs or write-offs thereof), exceed $100,000,000 and (III) no contributions may be made pursuant to subclause (y) or (z) of this clause (viii) at any time any Specified Default or any Event of Default is in existence (or would be in existence after giving effect thereto); (ix) the Borrowers and the Subsidiary Guarantors may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.15 and the component definitions therein; (x) 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; (xi) 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(v) and (xviii); (xii) the U.S. Borrower and its Subsidiaries may enter into (x) Other Hedging Agreements in the ordinary course of business providing protection against fluctuations in currency values in connection with the operations of the U.S. Borrower or any of its Subsidiaries and (y) Commodity Agreements in the ordinary course of business providing protection against fluctuations in prices of commodities used in the operations of the U.S. Borrower and its Subsidiaries, in each case, so long as management of the U.S. Borrower or such Subsidiary, as the case may be, has determined in good faith that the entering into of such Other Hedging Agreements or Commodity Agreements, as the case may be, are bona fide hedging activities and are not for speculative purposes; (xiii) Holdings may acquire and hold obligations of one or more officers, directors or other employees of Holdings or any of its Subsidiaries in connection with such officers', directors' or employees' acquisition of shares of capital stock of Holdings, so long as no cash is paid by Holdings or any of its Subsidiaries to such officers, directors or employees in connection with the acquisition of any such obligations; (xiv) Investments arising as a result of the exercise of any "put" right of minority shareholders, or "call" rights of the Bermuda Borrower, pursuant to that certain Share Option Agreement, dated as of September 28, 1998, among the Bermuda Borrower, Axel Johnson Saba AB and Kooperativa Detaljhandelsgruppen AB (as in effect on the Effective Date) (the "Saba Share Option Agreement"); (xv) loans or advances by any Subsidiary of Holdings in connection with grower loan programs; provided that (I) at no time shall the aggregate outstanding principal amount of all such loans and advances made pursuant to this clause (xv) exceed $75,000,000 (determined without regard to write-downs or write-offs thereof), (II) no loans or advances may be made pursuant to clause (xv) at any time any Specified Default or any Event of Default is in existence (or would be in existence after giving effect -132- thereto), and (III) in the event a loan or advance made by a Credit Party pursuant to this clause (xv) is evidenced by a promissory note, such promissory note shall be pledged to the Collateral Agent pursuant to the relevant Foreign Security Document (except to the extent local law or the relevant grower loan documents prohibit such pledge or such note is required to be pledged to secure Indebtedness incurred pursuant to Section 9.04(xix)(x)); (xvi) so long as no Default or Event of Default then exists or would result therefrom, the U.S. Borrower and its Subsidiaries may acquire Equity Interests in Persons (who, after giving effect to such acquisition, become Non-Wholly Owned Subsidiaries of the U.S. Borrower or such Subsidiary); provided that the aggregate amount of the Investments made pursuant to this clause (xvi) after the Effective Date shall not exceed $35,000,000 (without regard to any write-downs or write-offs thereof); (xvii) 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 clause (xvii) which are not subject to the subordination provisions of the Intercompany Subordination Agreement shall not exceed $35,000,000 at any time; (xviii) Investments constituting guaranties permitted by Section 9.04; (xix) 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 Tranche B Term Loans in accordance with the requirements of Section 4.01(vii), (y) the U.S. Borrower makes a concurrent prepayment of Tranche A 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 clause (xix) shall be subject to subordination as, and to the extent required by, the Intercompany Subordination Agreement; and (xx) 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 clauses (i) through (xix) of this Section 9.05 in an aggregate amount not to -133- exceed $50,000,000 (determined without regard to any write-downs or write-offs thereof). 9.06 Restricted Payments; etc. No Credit Agreement Party will, nor will permit any of its Subsidiaries to, declare or pay any dividends (other than dividends payable solely in non-redeemable common stock or comparable common equity interests of Holdings or any such Subsidiary, as the case may be) or return any equity capital to, its stockholders, partners, members or other equity holders or authorize or make any other distribution, payment or delivery of property or cash to its stockholders, partners, members or other equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock or other Equity Interests, now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares or other Equity Interests), or set aside any funds for any of the foregoing purposes, and no Credit Agreement Party will permit any of its Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the capital stock or other Equity Interests of Holdings or any other Subsidiary, as the case may be, now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock or other Equity Interests) (all of the foregoing "Dividends") or make any payments in respect of any outstanding Shareholder Subordinated Notes or Intercompany Debt, except that: (i) (x) any Subsidiary of the 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 preceding clause (x) to any Wholly-Owned Subsidiary that is not a Credit Party may only be made if (A) (I) no Specified Default and no Event of Default then exists or would result therefrom and (II) such Wholly-Owned Subsidiary promptly distributes and/or transfer any Property received pursuant to such Dividend (directly or indirectly through other Wholly-Owned Subsidiaries) to a Credit Party or (B) the Subsidiary making such Dividend is not a Credit Party; provided however, that, subject to Section 9.01(d)(v), any such Dividend may be made to the Bermuda Partnership notwithstanding the existence of an Event of Default (other than an Event of Default under Section 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(d); (ii) Holdings may redeem or purchase shares of Holdings Common Stock or options to purchase Holdings Common Stock, as the case may be, held by former officers or employees of Holdings or any of its Subsidiaries following the death, disability, retirement or termination of employment of such officers or employees, provided that (w) the only consideration paid by Holdings in respect of such redemptions and/or purchases shall be cash and Shareholder Subordinated Notes, (x) the sum of (A) the aggregate -134- amount paid by Holdings in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of all principal and interest payments made on Shareholder Subordinated Notes, shall not exceed $2,000,000 in any Fiscal Year of Holdings, and (z) at the time of any redemption or purchase pursuant to this Section 9.06(ii), no Specified Default or Event of Default shall then exist or result therefrom; (iii) the U.S. Borrower may pay cash Dividends to Holdings, so long as (x) no Specified Default or Event of Default then exists or would result therefrom and (y) the cash proceeds thereof are promptly used by Holdings for the purposes described in Section 9.06(ii); (iv) the U.S. Borrower may pay cash Dividends to Holdings, so long as the proceeds thereof are promptly used by Holdings to pay operating expenses in the ordinary course of business (including, without limitation, professional fees and expenses) and other similar corporate overhead costs and expenses; (v) the U.S. Borrower may pay cash Dividends to Holdings in the amounts and at the times of any payment by Holdings in respect of its taxes (or taxes of its consolidated group), provided that (x) the amount of cash Dividends paid pursuant to this clause (v) to enable Holdings to pay federal income taxes at any time shall not exceed the lesser of (A) the amount of such federal income taxes owing by Holdings at such time for the respective period and (B) the amount of such federal income taxes that would be owing by the U.S. Borrower and its Subsidiaries on a consolidated basis for such period if determined without regard to Holdings' ownership of the U.S. Borrower and (y) any refunds shall promptly be returned by Holdings to the U.S. Borrower; (vi) the Transaction shall be permitted to be consummated in accordance with the relevant requirements of this Agreement; (vii) the U.S. Borrower and its Subsidiaries may make payments with respect to Intercompany Debt, so long as the respective payment is permitted to be made in accordance with the terms of the Intercompany Subordination Agreement; (viii) Holdings may make payments of interest and principal on the Shareholder Subordinated Notes in accordance with the terms thereof, so long as the sum of (A) the aggregate amount paid by Holdings in cash in respect of all redemptions and/or purchases of Holdings Common Stock pursuant to Section 9.06(ii) plus (B) the aggregate amount of all principal and interest payments made on Shareholder Subordinated Notes, does not exceed $2,000,000 in any Fiscal Year of Holdings; and (ix) Holdings may pay regularly scheduled Dividends on its Qualified Preferred Stock pursuant to the terms thereof solely through the issuance of additional shares of such Qualified Preferred Stock rather than in cash. 9.07 Transactions with Affiliates. No Credit Agreement Party will, nor will permit any of its Subsidiaries to, enter into any transaction or series of transactions with any Affiliate of Holdings or any of its Subsidiaries other than in the ordinary course of business and on terms and conditions substantially as favorable to such Credit Agreement Party or such -135- Subsidiary as would be reasonably expected to be obtainable by such Credit Agreement Party or such Subsidiary at the time in a comparable arm's-length transaction with a Person other than an Affiliate; provided that the following shall in any event be permitted: (i) the Transaction; (ii) intercompany transactions among the U.S. Borrower and its Subsidiaries to the extent expressly permitted by Sections 9.02, 9.04, 9.05 and 9.06; (iii) the payment of consulting or other fees to the U.S. Borrower by any of its Subsidiaries in the ordinary course of business; (iv) customary fees to non-officer directors of the U.S. Borrower and its Subsidiaries; (v) 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; (vi) Dividends may be paid by Holdings to the extent permitted by Section 9.06; (vii) the payment of customary fees (excluding management fees) to the Agents and their Affiliates for services rendered (including, without limitation, any underwriting discounts and commissions); and (viii) transactions between the U.S. Borrower and/or any of its Subsidiaries and their respective Affiliates listed on Schedule XVI hereto. In no event shall any management, consulting or similar fee be paid or payable by Holdings or any of its Subsidiaries to any Affiliate (other than the U.S. Borrower or any other Credit Party), except as specifically provided in this Section 9.07. 9.08 Consolidated Interest Coverage Ratio. Holdings will not permit the Consolidated Interest Coverage Ratio for any Test Period ended on the last day of a Fiscal Quarter set forth below to be less than the ratio set forth opposite such Fiscal Quarter below:

Fiscal Quarter Ratio -------------- ----- 2nd Fiscal Quarter of Fiscal Year 2003 2.50:1.0 3rd Fiscal Quarter of Fiscal Year 2003 2.50:1.0 4th Fiscal Quarter of Fiscal Year 2003 2.50:1.0 1st Fiscal Quarter of Fiscal Year 2004 2.50:1.0 2nd Fiscal Quarter of Fiscal Year 2004 2.50:1.0 3rd Fiscal Quarter of Fiscal Year 2004 2.50:1.0 4th Fiscal Quarter of Fiscal Year 2004 2.50:1.0 1st Fiscal Quarter of Fiscal Year 2005 2.55:1.0 2nd Fiscal Quarter of Fiscal Year 2005 2.60:1.0 3rd Fiscal Quarter of Fiscal Year 2005 2.65:1.0 4th Fiscal Quarter of Fiscal Year 2005 2.70:1.0 1st Fiscal Quarter of Fiscal Year 2006 2.70:1.0 and each Fiscal Quarter thereafter

For purposes of making determinations of compliance with this Section 9.08 pursuant to Section 8.15(a) only, the Consolidated Interest Coverage Ratio shall be calculated on a Pro Forma Basis. 9.09 Consolidated Fixed Charge Coverage Ratio. Holdings will not permit the Consolidated Fixed Charge Coverage Ratio for any Test Period ending on the last day of any Fiscal Quarter of Holdings to be less than the ratio set forth opposite such Fiscal Quarter below: -136-

Fiscal Quarter Ended Ratio -------------------- ----- 2nd Fiscal Quarter of Fiscal Year 2003 1.10:1.0 3rd Fiscal Quarter of Fiscal Year 2003 1.10:1.0 4th Fiscal Quarter of Fiscal Year 2003 1.10:1.0 1st Fiscal Quarter of Fiscal Year 2004 1.10:1.0 2nd Fiscal Quarter of Fiscal Year 2004 1.10:1.0 3rd Fiscal Quarter of Fiscal Year 2004 1.10:1.0 4th Fiscal Quarter of Fiscal Year 2004 1.10:1.0 1st Fiscal Quarter of Fiscal Year 2005 1.15:1.0 and each Fiscal Quarter thereafter

For purposes of making determinations of compliance with this Section 9.09 pursuant to Section 8.15(a) only, the Consolidated Fixed Charge Coverage Ratio shall be calculated on a Pro Forma Basis. 9.10 Leverage Ratio. Holdings will not permit the Leverage Ratio at any time during a period set forth below to be greater than the ratio set forth opposite such period below:

Period Ratio ------ ----- Initial Borrowing Date to and including the day occurring 5.25:1.0 prior to the last day of the 2nd Fiscal Quarter of Fiscal Year 2004 Last day of the 2nd Fiscal Quarter of Fiscal Year 2004 to and 5.00:1.0 including the day occurring prior to the last day of 4th Fiscal Quarter of Fiscal Year 2004 Last day of the 4th Fiscal Quarter of Fiscal Year 2004 to and 4.75:1.0 including the day occurring prior to the last day of 1st Fiscal Quarter of Fiscal Year 2005 Last day of the 1st Fiscal Quarter of Fiscal Year 2005 to and 4.50:1.0 including the day occurring prior to the last day of 2nd Fiscal Quarter of Fiscal Year 2005 Last day of the 2nd Fiscal Quarter of Fiscal Year 2005 to and 4.35:1.0 including the day occurring prior to the last day of the 3rd Fiscal Quarter of Fiscal Year 2005

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Period Ratio ------ ----- Last day of the 3rd Fiscal Quarter of Fiscal Year 2005 to and 4.25:1.0 including the day occurring prior to the last day of the 4th Fiscal Quarter of Fiscal Year 2005 Last day of the 4th Fiscal Quarter of Fiscal Year 2005 to and 4.00:1.0 including the day occurring prior to the last day of 2nd Fiscal Quarter of Fiscal Year 2006 Last day of the 2nd Fiscal Quarter of Fiscal Year 2006 to and 3.85:1.0 including the day occurring prior to the last day of 4th Fiscal Quarter of Fiscal Year 2006 Last day of the 4th Fiscal Quarter of Fiscal Year 2006 to and 3.75:1.0 including the day occurring prior to the last day of the 3rd Fiscal Quarter of Fiscal Year 2007 Last day of the 3rd Fiscal Quarter of Fiscal Year 2007 and 3.50:1.0 thereafter

Notwithstanding anything to the contrary contained in the table set forth above, at any time from November 1 to and including the last day of the 1st Fiscal Quarter of each Fiscal Year, the Leverage Ratio as otherwise set forth in the table above for the applicable period shall be adjusted by increasing the ratio by 0.25 (for example, for the period from November 1, 2003 to and including the last day of the 1st Fiscal Quarter of Fiscal Year 2004, the Leverage Ratio would be increased from 5.25:1.00 to 5.50:1.00). All determinations of the Leverage Ratio for purposes of this Section 9.10 shall include Consolidated EBITDA as calculated on a Pro Forma Basis to give effect to all Permitted Acquisitions and Significant Asset Sales, if any, effected during (but not after) the respective Test Period for which Consolidated EBITDA is being determined; provided that for purposes of making determinations of compliance with this Section 9.10 pursuant to Section 8.15(a), the Leverage Ratio shall be calculated on a Pro Forma Basis as otherwise required by the definition of Pro Forma Basis contained herein. 9.11 Minimum Consolidated EBITDA. Holdings will not permit Consolidated EBITDA for any Test Period ending on the last day of a Fiscal Quarter of Holdings set forth below to be less than the respective amount set forth opposite such Fiscal Quarter below:

Fiscal Quarter Ending Amount --------------------- ------ 2nd Fiscal Quarter of Fiscal Year 2003 $115,000,000 3rd Fiscal Quarter of Fiscal Year 2003 $190,000,000 4th Fiscal Quarter of Fiscal Year 2003 $260,000,000 1st Fiscal Quarter of Fiscal Year 2004 $345,000,000

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Fiscal Quarter Ending Amount --------------------- ------ 2nd Fiscal Quarter of Fiscal Year 2004 $350,000,000 3rd Fiscal Quarter of Fiscal Year 2004 $355,000,000 4th Fiscal Quarter of Fiscal Year 2004 $355,000,000 1st Fiscal Quarter of Fiscal Year 2005 $360,000,000 2nd Fiscal Quarter of Fiscal Year 2005 $365,000,000 3rd Fiscal Quarter of Fiscal Year 2005 $370,000,000 4th Fiscal Quarter of Fiscal Year 2005 $375,000,000 1st Fiscal Quarter of Fiscal Year 2006 $385,000,000 2nd Fiscal Quarter of Fiscal Year 2006 $385,000,000 3rd Fiscal Quarter of Fiscal Year 2006 $385,000,000 4th Fiscal Quarter of Fiscal Year 2006 $385,000,000 1st Fiscal Quarter of Fiscal Year 2007 $390,000,000 and thereafter

9.12 Capital Expenditures. (a) Holdings will not, and will not permit any of its Subsidiaries to, make any Capital Expenditures, except that (i) during the period from the Initial Borrowing Date through and including the last day of Fiscal Year 2003, the U.S. Borrower and its Subsidiaries may make Capital Expenditures in an aggregate amount not to exceed $80,000,000 and (ii) during any Fiscal Year of Holdings set forth below (taken as one accounting period), the U.S. Borrower and its Subsidiaries may make Capital Expenditures so long as the aggregate amount of such Capital Expenditures does not exceed the amount set forth below opposite such Fiscal Year below:

Fiscal Year Amount ----------- ------ Fiscal Year 2004 $100,000,000 Fiscal Year 2005 $100,000,000 Fiscal Year 2006 $100,000,000 Fiscal Year 2007 $100,000,000 Fiscal Year 2008 $100,000,000

(b) Notwithstanding the foregoing, in the event that the amount of Capital Expenditures permitted to be made by the U.S. Borrower and its Subsidiaries pursuant to clause (a) above in any Fiscal Year of Holdings (or during the period set forth in clause (a)(i) above) (before giving effect to any increase in such permitted Capital Expenditure amount pursuant to this clause (b)) is greater than the amount of Capital Expenditures actually made by the U.S. Borrower and its Subsidiaries during such Fiscal Year (or period, as the case may be), the lesser of (x) such excess and (y) 50% of the applicable permitted scheduled Capital Expenditure amount as set forth in such clause (a) above may be carried forward and utilized to make Capital Expenditures in the immediately succeeding Fiscal Year, provided that no amounts once carried forward pursuant to this Section 9.12(b) may be carried forward to any subsequent Fiscal Year of Holdings thereafter and such amounts may only be utilized after the U.S. Borrower and its -139- Subsidiaries have utilized in full the permitted Capital Expenditure amount for such period as set forth in the table in clause (a) above (without giving effect to any increase in such amount pursuant to this clause (b)). (c) In addition to the foregoing, the U.S. Borrower and its Subsidiaries may make additional Capital Expenditures (which Capital Expenditures will not be included in any determination under Section 9.12(a)) with the Net Sale Proceeds of Asset Sales to the extent such Net Sale Proceeds do not require, or result in, a mandatory repayment of Term Loans and/or a mandatory reduction to the Total Revolving Loan Commitment pursuant to Section 4.02(c) and such proceeds are reinvested within 360 days (subject to a six month extension for contractual commitments that are not completed during such 360-day period) following the date of such Asset Sale in accordance with the requirements of said Section. (d) In addition to the foregoing, the U.S. Borrower and its Subsidiaries may make additional Capital Expenditures (which Capital Expenditures will not be included in any determination under Section 9.12(a)) with the insurance proceeds received by the U.S. Borrower or any of its Subsidiaries from any Recovery Event so long as such Capital Expenditures are to replace or restore any properties or assets in respect of which such proceeds were paid within 360 days (subject to a six month extension for contractual commitments that are not completed during such 360-day period) following the date of the receipt of such insurance proceeds, in each case to the extent such insurance proceeds do not require, or result in, a mandatory repayment of Term Loans and/or a mandatory reduction to the Total Revolving Loan Commitment pursuant to Section 4.02(f). (e) In addition to the foregoing, the Borrowers and the Subsidiary Guarantors may make additional Capital Expenditures (which Capital Expenditures will not be included in any determination under Section 9.12(a)) constituting Permitted Acquisitions effected in accordance with the requirements of Section 8.15. 9.13 Bank Debt Leverage Ratio. Holdings will not permit the Bank Debt Leverage Ratio at any time during a period set forth below to be greater than the ratio set forth opposite such period below:

Period Ratio Initial Borrowing Date to and including the day prior to the 2.30:1.0 last day of the 1st Fiscal Quarter of Fiscal Year 2004 Last Day of the 1st Fiscal Quarter of Fiscal Year 2004 to and 2.25:1.0 including the day occurring prior to the last day of the 4th Fiscal Quarter of Fiscal Year 2004 Last Day of the 4th Fiscal Quarter of Fiscal Year 2004 to and 1.75:1.0 including the day occurring prior to the last day of 3rd Fiscal Quarter of Fiscal Year 2005

-140- Last Day of the 3rd Fiscal Quarter of Fiscal Year 2005 to and 1.50:1.0 including the day occurring prior to the last day of the 4th Fiscal Quarter of Fiscal Year 2005 Last Day of the 4th Fiscal Quarter of Fiscal Year 2005 and 1.25:1.0 thereafter Notwithstanding anything to the contrary contained in the table set forth above, at any time from November 1 to and including the last day of the 1st Fiscal Quarter of each Fiscal Year, the Bank Debt Leverage Ratio as otherwise set forth in the table above for the applicable period shall be adjusted by increasing the ratio by 0.25 (for example, for the period from November 1, 2003 to and including the day prior to the last day of the 1st Fiscal Quarter of Fiscal Year 2004, the Bank Debt Leverage Ratio would be increased from 2.30:1.00 to 2.55:1.00). All determinations of the Bank Debt Leverage Ratio for purposes of this Section 9.13 shall include Consolidated EBITDA as calculated on a Pro Forma Basis to give effect to all Permitted Acquisitions and Significant Asset Sales, if any, effected during (but not after) the respective Test Period for which Consolidated EBITDA is being determined; provided that for purposes of making determinations of compliance with this Section 9.13 pursuant to Section 8.15(a), the Bank Debt Leverage Ratio shall be calculated on a Pro Forma Basis as otherwise required by the definition of Pro Forma Basis contained herein. 9.14 Limitation on Voluntary Payments and Modifications of Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements; Issuances of Capital Stock; etc. (a) No Credit Agreement Party will, and no Credit Agreement Party will permit any of its Subsidiaries to: (i) make (or give any notice in respect of) any voluntary or optional payment or prepayment on or redemption, repurchase or acquisition for value of (including, without limitation, by way of depositing with the trustee with respect thereto or any other Person money or securities before due for the purpose of paying when due), or any prepayment, repurchase, redemption or acquisition for value as a result of any asset sale, change of control or similar event of any New Senior Notes, any Existing Indebtedness (other than Scheduled Existing Indebtedness), or, after the incurrence or issuance thereof, any Permitted Refinancing Indebtedness, Shareholder Subordinated Notes (except to the extent expressly permitted under Section 9.06(viii)), Qualified Preferred Stock or Permitted Acquired Debt; provided that (w) the New Senior Notes may be exchanged for New Exchange Senior Notes in accordance with the requirements of the respective definitions thereof and the relevant provisions of this Agreement, (x) so long as no Event of Default then exists or would result therefrom, the Post-Closing Refinancing may be consummated in accordance with the requirements of Section 8.21, (y) so long as no Specified Default and no Event of Default then exists or would result therefrom, any Scheduled Existing Indebtedness, any Permitted Acquired Debt and any Permitted Refinancing Indebtedness incurred to refinance same may be refinanced with Permitted Refinancing Indebtedness in accordance with the requirements of this Agreement and (z) the U.S. Borrower may redeem New Senior Notes or Existing Senior Notes with the proceeds of any sale of Equity Interests by, or capital contribution to, Holdings not required to be applied as a mandatory repayment and/or commitment reduction in accordance with -141- the requirements of Section 4.02(e) and the definition of Applicable Prepayment Percentage, so long as (I) no Default or Event of Default then exists or would result therefrom and (II) any such redemption is effected in accordance with the terms of the relevant indenture governing such senior notes and all applicable law; (ii) amend or modify, or permit the amendment or modification of, any provision of any New Senior Notes Document or any Existing Senior Notes Document, other than any technical or clarifying amendments, modifications or changes to any such Documents that are not in any way adverse to the interests of the Lenders and do not relate to the subordination provisions contained therein; or (iii) amend, modify or change any Merger Document, any Permitted Acquired Debt, any Permitted Refinancing Indebtedness, any Tax Allocation Agreement, any Management Agreement, any Qualified Preferred Stock, its certificate of incorporation (including, without limitation, by the filing or modification of any certificate of designation), by-laws, certificate of partnership, partnership agreement, certificate of limited liability company, limited liability company agreement (or equivalent organizational documents) or any agreement entered into by it, with respect to its capital stock or other Equity Interests (including any Shareholders' Agreement), or enter into any new Tax Allocation Agreement, Management Agreement or agreement with respect to its capital stock or other Equity Interests, other than (A) any change to Permitted Acquired Debt or Permitted Refinancing Indebtedness as a result of the refinancing thereof as permitted by Section 9.13(i), (B) any amendments or modifications to Permitted Refinancing Debt or Qualified Preferred Stock consistent with the definitions thereof provided herein and (C) any amendments, modifications or changes pursuant to this clause (iii) and any such new agreements pursuant to this clause (iii), (x) which do not in any way adversely affect the interests of the Lenders, (y), in the case of any Management Agreement, which does not involve the payment by Holdings or any of its Subsidiaries of any amount which could give rise to a violation of this Agreement and (z) any amendment to such Person's respective certificates of incorporation or other organizational documents to authorize the issuance of capital stock or other Equity Interests otherwise permitted to be issued pursuant to the terms of this Agreement. (b) Neither Holdings nor any of its Subsidiaries shall designate any Indebtedness (other than the Obligations) as "Designated Guarantor Senior Debt" for purposes of the New Senior Notes Documents or the Existing Senior Notes Documents. 9.15 Limitation on Issuance of Equity Interests. (a) Holdings will not issue (i) any Preferred Equity (or any options, warrants or rights to purchase Preferred Equity) (other than Qualified Preferred Stock issued pursuant to clause (c) below) or (ii) any redeemable common stock or equivalent common Equity Interests. (b) No Borrower shall, nor shall permit any of its Subsidiaries to, issue any capital stock or other Equity Interests (including by way of sales of treasury stock), except (i) for transfers and replacements of then outstanding shares of capital stock or other Equity Interests, (ii) for stock splits, stock dividends and additional issuances which do not decrease the aggregate percentage ownership of Holdings and its Subsidiaries in any class of the capital stock or other -142- Equity Interests of such Subsidiaries, (iii) in the case of Foreign Subsidiaries of the U.S. Borrower, to qualify directors to the extent required by applicable law, (iv) Subsidiaries formed after the Effective Date pursuant to Section 9.17 may issue capital stock or other Equity Interests in accordance with the requirements of Section 9.17 and (v) issuances of Equity Interests (including Preferred Equity) by any Wholly-Owned Subsidiary of the U.S. Borrower to one or more other Wholly-Owned Subsidiaries of the U.S. Borrower. All capital stock or other Equity Interests issued in accordance with this Section 9.15(b) shall, to the extent required by the relevant Security Document, be delivered to the Collateral Agent for pledge pursuant to such Security Document. (c) Holdings may issue Qualified Preferred Stock so long as (x) no Default or Event of Default shall exist at the time of any such issuance or immediately after giving effect thereto, and (y) with respect to each issue of Qualified Preferred Stock, the gross cash proceeds therefrom (or in the case of Qualified Preferred Stock directly issued as consideration for a Permitted Acquisition, the Fair Market Value thereof of the assets received therefor) shall be at least equal to 100% of the liquidation preference thereof at the time of issuance. 9.16 Limitation on Certain Restrictions on Subsidiaries. No Credit Agreement Party will, nor will permit any of its Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective, any encumbrance or restriction on the ability of any such Subsidiary to (x) pay dividends or make any other distributions on its capital stock or any other Equity Interests or participation in its profits owned by Holdings or any Subsidiary of Holdings, or pay any Indebtedness owed to Holdings or a Subsidiary of Holdings, (y) make loans or advances to Holdings or any Subsidiary of Holdings or (z) transfer any of its properties or assets to Holdings or any of its Subsidiaries, except for such encumbrances or restrictions existing under or by reason of (i) applicable law, (ii) this Agreement and the other Credit Documents, (iii) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the 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 or a Permitted Acquisition effected in accordance with Section 8.15; provided that the restrictions applicable to such joint venture are not made more burdensome, 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 or Permitted Acquisition; (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 New Senior Notes Documents; (ix) the Existing 2009 Senior Notes Documents and (x) the Existing 2013 Senior Notes Documents. -143- 9.17 Limitation on the Creation of Subsidiaries and Joint Ventures. (a) Except as otherwise specifically provided in immediately succeeding clause (b), Holdings will not, and will not permit any of its Subsidiaries to, establish, create or acquire after the Initial Borrowing Date any Subsidiary, provided that the U.S. Borrower and its Wholly-Owned Subsidiaries shall be permitted to establish or create Wholly-Owned Subsidiaries so long as (A) at least 15 Business Days' (or such lesser period as is acceptable to the Administrative Agent in any given case) prior written notice thereof is given to the Administrative Agent (provided that no such notice shall be required to be given in the case of a Shell Corporation), (B) subject to Sections 8.11(d) and 8.12, the Equity Interests of each such new Wholly-Owned Subsidiary (if same is an Unrestricted Subsidiary) are pledged pursuant to, and to the extent required by, the applicable Pledge Agreements and/or Foreign Security Agreements and, if such Equity Interests constitute certificated Equity Interests, the certificates representing such Equity Interests, together with stock or other powers duly executed in blank, are delivered to the Collateral Agent for the benefit of the Secured Creditors, (C) to the extent such new Wholly-Owned Subsidiary is required, in accordance with the applicable provisions of Section 8.11, to become a U.S. Subsidiary Guarantor, (i) such new Wholly-Owned Subsidiary executes and delivers counterparts of the U.S. Subsidiaries Guaranty, the Intercompany Subordination Agreement and such Security Documents as would have been entered into by the respective Subsidiary if same had been a U.S. Subsidiary Guarantor on the Initial Borrowing Date, and takes all action in connection therewith as would otherwise have been required to be taken pursuant to Section 5 if such new Wholly-Owned Subsidiary had been a U.S. Credit Party on the Initial Borrowing Date, (D) to the extent such new Wholly-Owned Subsidiary is organized in a Qualified Non-U.S. Jurisdiction and is required, in accordance with the applicable provisions of Section 8.11, to become a Foreign Subsidiary Guarantor, (i) such new Wholly-Owned Subsidiary executes and delivers counterparts of the Foreign Subsidiaries Guaranty, the Intercompany Subordination Agreement and such Security Documents as would have been entered into by the respective Subsidiary if same had been a Foreign Subsidiary Guarantor on the Initial Borrowing Date (determined in accordance with the criteria described in Sections 5.15, 5.17 and 5.18(b)), and takes all action in connection therewith as would otherwise have been required to be taken pursuant to Section 5 if such new Wholly-Owned Subsidiary had been a Foreign Credit Party on the Initial Borrowing Date, (E) to the extent such new Wholly-Owned Subsidiary is organized in a Non-Qualified Jurisdiction and is required, in accordance with the applicable provisions of Section 8.11, to become a Foreign Subsidiary Guarantor, (i) such new Wholly-Owned Subsidiary executes and delivers 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 would have been entered into by the respective Subsidiary if same had been a Foreign Subsidiary Guarantor organized in such Non-Qualified Jurisdiction on the Initial Borrowing Date (determined in accordance with the criteria described in Sections 5.15, 5.17 and 5.18(b)), and takes all action in connection therewith as would otherwise have been required to be taken pursuant to Section 5 if such new Wholly-Owned Subsidiary had been a Foreign Credit Party organized in such Non-Qualified Jurisdiction on the Initial Borrowing Date and (F) such new Wholly-Owned Subsidiary, to the extent requested by any Agent or the Required Lenders, takes all other actions required pursuant to Section 8.11 (including, without limitation, to, at its own expense, execute, acknowledge and deliver, or cause the execution, acknowledgment and delivery of, and thereafter register, file or record in any appropriate governmental office, any document or instrument reasonably deemed -144- by the Collateral Agent to be necessary or desirable for the creation and perfection of the Liens on its assets intended to be created pursuant to the applicable Security Documents); provided that in the case of a Shell Corporation created or established by the U.S. Borrower or any of its Wholly-Owned Subsidiaries, the actions described in clauses (B), (C), (D) and (E) and applicable to such Shell Corporation shall not be required to be taken (so long as same remains a Shell Corporation) until 60 days after the creation or establishment of such Shell Corporation. (b) In addition to Subsidiaries of the U.S. Borrower created pursuant to preceding clause (a), the U.S. Borrower and its Subsidiaries may establish, acquire or create, and make Investments in, Non-Wholly Owned Subsidiaries after the Initial Borrowing Date as a result of Permitted Acquisitions (subject to the limitations contained in the definition thereof) and Investments expressly permitted to be made pursuant to Section 9.05, provided that (x) all Equity Interests of each such Non-Wholly Owned Subsidiary which is an Unrestricted Subsidiary shall be pledged by any Credit Party which owns same to the extent required by the Pledge Agreements or relevant Foreign Security Agreements, and (y) any actions required to be taken pursuant to Section 8.11 in connection with the establishment of, or Investments in, the respective Subsidiaries are taken in accordance with the requirements of said Section 8.11. 9.18 Special Restrictions Relating to Principal Property. No Credit Agreement Party will, nor will permit any of its Subsidiaries to, (i) own any Principal Property (other than the Principal Properties designated on Schedule XVII hereto), (ii) permit any Property owned by such Credit Agreement Party or such Subsidiary which is not a Principal Property on the Initial Borrowing Date to become a Principal Property after the Initial Borrowing Date or (iii) directly or indirectly, create, incur, issue, assume, guarantee or otherwise become liable for or suffer to exist any Indebtedness secured by a Lien on Principal Property. 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 or Note, (ii) default, and such default shall continue for three or more Business Days, in the payment when due of any Unpaid Drawing, any Unreimbursed Payment, any interest on any Loan or Note or any Fees or (iii) default, and such default shall continue for 10 or more Business Days after notice to 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. Any representation, warranty or statement made or deemed made by any Credit Party herein or in any other Credit Document or in any statement or certificate delivered pursuant hereto or thereto shall prove to be untrue in any material respect on the date as of which made or deemed made; or 10.03 Covenants. Holdings or any of its Subsidiaries shall (a) default in the due performance or observance by it of any term, covenant or agreement contained in Section 2B.07, 8.01(f)(i), 8.10, 8.11, 8.13, 8.15, 8.19, 8.20, 8.21, 8.22 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 -145- 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) Holdings or any of its Subsidiaries shall (i) default in any payment with respect to any Indebtedness (other than the Obligations) beyond the period of grace, if any, provided in the instrument or agreement under which Indebtedness was created or (ii) default in the observance or performance of any agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause (determined without regard to whether any notice is required), any such Indebtedness to become due prior to its stated maturity; or (b) any Indebtedness (other than the Obligations) of Holdings or any of its Subsidiaries shall be declared to be (or shall become) due and payable, or shall be required to be prepaid other than by a regularly scheduled required prepayment, prior to the stated maturity thereof; provided that it shall not constitute an Event of Default pursuant to clause (a) or (b) of this Section 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. Holdings or any of its Subsidiaries shall commence a voluntary case concerning itself under Title 11 of the United States Code entitled "Bankruptcy," as now or hereafter in effect, or any successor thereto (the "Bankruptcy Code"); or an involuntary case is commenced against Holdings or any of its Subsidiaries and the petition is not controverted within 10 days, or is not dismissed within 60 days, after commencement of the case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of Holdings or any of its Subsidiaries; or Holdings or any of its Subsidiaries commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to Holdings or any of its Subsidiaries; or there is commenced against Holdings or any of its Subsidiaries any such proceeding which remains undismissed for a period of 60 days; or Holdings or any of its Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief or other order approving any such case or proceeding is entered; or Holdings or any of its Subsidiaries suffers any appointment of any custodian or the like for it or any substantial part of its property to continue undischarged or unstayed for a period of 60 days; or Holdings or any of its Subsidiaries makes a general assignment for the benefit of creditors; or any Company action is taken by Holdings or any of its Subsidiaries for the purpose of effecting any of the foregoing; or 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 -146- reasonably expected to occur with respect to such Plan within the following 30 days which will result in a Material Adverse Effect, any Plan which is subject to Title IV of ERISA shall have had or is likely to have a trustee appointed to administer such Plan pursuant to Section 4042(b) of ERISA, any Plan or Multiemployer Plan which is subject to Title IV of ERISA is, shall have been or is likely to be involuntarily terminated or to be the subject of termination proceedings under ERISA, any Plan subject to Title IV of ERISA shall have an Unfunded Current Liability, a contribution required to be made with respect to a Plan subject to Title IV of ERISA or Multiemployer Plan or a Foreign Pension Plan has not been made within 60 days of when due, Holdings or any Subsidiary of Holdings or any ERISA Affiliate has incurred or is likely to incur any liability to or on account of a Plan subject to Title IV of ERISA or Multiemployer Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on account of a group health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the Code, or Holdings or any Subsidiary of Holdings has incurred or is likely to incur liabilities pursuant to one or more employee welfare benefit plans (as defined in Section 3(1) of ERISA) that provide benefits to retired employees or other former employees (other than as required by Section 601 of ERISA) or Plans or Foreign Pension Plans, a "default" within the meaning of Section 4219(c)(5) of ERISA, shall occur with respect to any Plan or Multiemployer Plan; (b) there shall result from any such event or events described above in this Section 10.06 the imposition of a 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 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 and (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 $5,000,000; or 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 -147- 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 Holdings or any of its Subsidiaries involving a liability (to the extent not paid or covered by a reputable and solvent insurance company (with any portion of any judgment or decree not so covered to be included in any determination hereunder)) equal to or in excess of $25,000,000 for all such judgments and decrees and all such judgments or decrees shall either be final and non-appealable or shall not have been vacated, discharged or stayed or bonded pending appeal for any period of 60 consecutive days; provided, however, that the rendering of any such judgment(s) or decree(s) by courts outside of the United States and Bermuda shall not be an Event of Default under this Section 10.09 unless (i) Holdings and its Subsidiaries which are subject to the judgment(s) or decree(s), as of the date of the issuance of such judgment(s) or decree(s) (or any later date while such judgment(s) or decree(s) are still in effect) have at least $25,000,000 in net assets (determined on a book basis without regard to any write-down or write-off of such assets as a result of such judgment(s) or decree(s)) located in the jurisdictions (i.e., the relevant country or countries or any larger jurisdiction of the respective court(s)) of the courts rendering such judgment(s) or decree(s) (which is (or are) final and non-appealable or has (or have) not been vacated, discharged, stayed or bonded pending appeal for any period of 60 consecutive days) or (ii) an order or orders enforcing such judgment(s) or decree(s) (which is (or are) final and non-appealable or has (or have) not been vacated, discharged, stayed or bonded pending appeal for any period of 60 consecutive days) is entered by a court or courts of competent jurisdiction in a jurisdiction or jurisdictions where Holdings and/or its Subsidiaries subject to the order, as of the date of the entry of such order of enforcement (or any later date while any such order is still in effect), have at least $25.0 million 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 Capital Call Agreement. (a) The Capital Call Agreement or any provision thereof shall cease to be in full force and effect except in accordance with the terms thereof, or Murdock or any Person acting by or on behalf of Murdock (including a Qualified Trust) shall deny or disaffirm its obligations under the Capital Call Agreement or Murdock or any Person acting on or behalf of Murdock shall default in the due performance or observance of any term, covenant or agreement on its part to be performed or observed pursuant to the Capital Call Agreement or a Capital Call Event of Default under, and as defined in, the Capital Call Agreement shall occur; or (b) Any representation, warranty or statement made (or deemed made) by Murdock in the Capital Call Agreement shall prove to be untrue in any material respect on the date as of which made or deemed made; or 10.12 Denial of Liability. (a) Any Credit Agreement Party shall deny its obligations under this Agreement, any Note 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 -148- 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 10.12; or 10.13 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 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 10.13; or 10.14 Special Defaults Relating to Bermuda Entities. (i) The Bermuda Borrower shall fail to maintain its corporate existence in full force and effect or (ii) any Foreign Credit Party organized under the laws of Bermuda shall (x) fail to take any of the actions described in Section 8.05 (determined without regard to the second proviso appearing in said Section) or (y) take any action described in the last sentence of Section 8.16 (determined without regard to the proviso appearing at the end of said sentence), and such failure to take or the taking of such action, as the case may be, described in this clause (ii) shall continue for a period of at least 30 days after notice to such Foreign Credit Party by the Administrative Agent or the Required Lenders; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing, the Administrative Agent shall, upon the written request of the Required Lenders, by written notice to Holdings or the 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 RL Commitment Commission and any other Fees shall forthwith become due and payable without any other notice of any kind; (ii) declare the principal of and any accrued interest in respect of all Loans and all Obligations owing hereunder (including Unpaid Drawings 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), 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 -149- 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 Multicurrency Facility Letters of Credit issued for the account of the Bermuda Borrower and then outstanding, (y) the aggregate Stated Amount of all Bermuda Borrower Dollar Facility Letters of Credit then outstanding and (z) 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 Dollars), to be held as security by the Administrative Agent, as is equal to the aggregate Stated Amount of all U.S. Borrower Dollar Facility Letters of Credit 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: "Account Party" shall mean the U.S. Borrower and/or the Bermuda Borrower, as the case may be. "Acquired Entity or Business" shall mean either (x) the assets constituting a business, division or product line of any Person not already a Subsidiary of Holdings or (y) 100% of the Equity Interests of any such Person, which Person shall, as a result of such acquisition of Equity Interests, become a Wholly-Owned Subsidiary of Holdings (or shall be merged with and into the U.S. Borrower or a Wholly-Owned Subsidiary of the U.S. Borrower, with the U.S. Borrower or such Wholly-Owned Subsidiary being the surviving Person). "Acquisition" shall mean, collectively, (i) the consummation of the Merger, (ii) the contribution by David H. Murdock and his Affiliates of all of the shares of the capital stock of the U.S. Borrower held by them (representing approximately 23% of the outstanding shares of capital stock of the U.S. Borrower (on a fully diluted basis) prior to consummation of the Merger) as a common equity contribution to Holdings and (iii) the contribution by Holdings, in turn, of all of the capital stock of the U.S. Borrower then held by it as a common equity contribution to Acquisition Corp. "Acquisition Corp." shall mean DHM Acquisition Company, Inc., a Delaware corporation and (prior to the consummation of the Acquisition) a Wholly-Owned Subsidiary of Holdings. "Acquisition Documents" shall mean the Merger Agreement and all other documents and agreements delivered in connection with the Acquisition, 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. -150- "Additional Collateral" shall mean all property (whether real or personal) in which security interests are granted (or have been purported to be granted) (and continue to be in effect at the time of determination) pursuant to Sections 8.11, 8.12 and/or 9.17. "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). "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, 8.12, 8.15 and/or 9.17, as each such document may be modified, supplemented or amended from time to time in accordance with the terms hereof and thereof. "Adjustable Applicable Margins" shall have the meaning provided in the definition of Applicable Margin. "Adjusted Consolidated Net Income" shall mean, for any period, Consolidated Net Income for such period plus, without duplication, the sum of the amount of all net non-cash charges (including, without limitation, depreciation, amortization, deferred tax expense and non-cash interest expense) and net non-cash losses which were included in arriving at Consolidated Net Income for such period, less the amount of all net non-cash gains which were included in arriving at Consolidated Net Income for such period. "Adjusted Consolidated Working Capital" shall mean, at any time, Consolidated Current Assets at such time (but excluding therefrom all cash and Cash Equivalents) less Consolidated Current Liabilities at such time. "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 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 Holdings or any Subsidiary thereof. "Agent" shall mean the Administrative Agent, each Co-Syndication Agent and each Co-Documentation Agent and shall include any successor to any such Person appointed pursuant to Section 12.10. "Aggregate Bermuda Borrower Dollar Facility RL Exposure" at any time shall mean the sum of (i) the aggregate principal amount of all Bermuda Borrower Dollar Facility -151- Revolving Loans then outstanding, (ii) the aggregate amount of all Bermuda Borrower Dollar Facility Letter of Credit Outstandings at such time and (iii) the aggregate principal amount of all Bermuda Borrower Dollar Facility Swingline Loans then outstanding. "Aggregate Dollar Facility RL Exposure" at any time shall mean the sum of (i) the aggregate principal amount of all Dollar Facility Revolving Loans then outstanding, (ii) the aggregate amount of all Dollar Facility Letter of Credit Outstandings at such time and (iii) the aggregate principal amount of all Dollar Facility Swingline Loans then outstanding. "Aggregate Multicurrency Facility RL Exposure" at any time shall mean the sum of (i) the aggregate principal amount of all Multicurrency Facility Revolving Loans then outstanding (for this purpose, using the Dollar Equivalent of each Euro Denominated Revolving Loan then outstanding), (ii) the aggregate amount of all Multicurrency Facility Letter of Credit Outstandings (using the Dollar Equivalent of all amounts expressed in Euros) at such time, (iii) the aggregate principal amount of all Multicurrency Facility Swingline Loans (for this purpose, using the Dollar Equivalent of each Euro Denominated Swingline Loan then outstanding) and (iv) the aggregate amount of all Bank Guaranty Outstandings (using the Dollar Equivalent of all amounts expressed in Euros) at such time. "Agreement" shall mean this Credit Agreement, as modified, supplemented, amended, restated (including any amendment and restatement hereof), extended, renewed, refinanced or replaced from time to time. "Applicable Currency" shall mean (i) with respect to any Loan, the Available Currency in which such Loan was incurred and (ii) with respect to any Letter of Credit or Bank Guaranty, the Available Currency in which such Letter of Credit or Bank Guaranty was denominated; provided that in the event Loans maintained in, Unpaid Drawings owed in, and Unreimbursed Payments owed in, Euros are converted into Loans maintained, or Unpaid Drawings or Unreimbursed Payments owing, as the case may be, in Dollars under the circumstances contemplated by Section 1.14, the Applicable Currency with respect to such Loans, Unpaid Drawings and Unreimbursed Payments shall be Dollars. "Applicable Dollar Facility Commitment Fee Percentage" shall mean, for any day, (i) in the event the Total Unutilized Dollar Facility Revolving Loan Commitment in effect on such day is greater than or equal to 66% of the Total Dollar Facility Revolving Loan Commitment as in effect on such day, 1.00%, (ii) in the event the Total Unutilized Dollar Facility Revolving Loan Commitment in effect on such day is (x) greater than or equal to 33% of the Total Dollar Facility Revolving Loan Commitment as in effect on such day and (y) less than 66% of the Total Dollar Facility Revolving Loan Commitment as in effect on such day, 0.750%, and (iii) in the event the Total Unutilized Dollar Facility Revolving Loan Commitment in effect on such day is less than 33% of the Total Dollar Facility Revolving Loan Commitment as in effect on such day, 0.500%. For purposes of this definition, the Total Unutilized Dollar Facility Revolving Loan Commitment and the Total Dollar Facility Revolving Loan Commitment as in effect on any day shall be determined after the close of business (New York time) on such day, following adjustments to such amounts for activity on such day. -152- "Applicable Margin" initially shall mean a percentage per annum equal to (i) in the case of Tranche A Term Loans maintained as (A) Base Rate Loans, 2.25% and (B) Eurodollar Loans, 3.25%; (ii) in the case of Tranche B Term Loans maintained as (A) Base Rate Loans, 2.75% and (B) Eurodollar Loans, 3.75%; (iii) in the case of Revolving Loans maintained as (A) Base Rate Loans, 2.25% and (B) Euro Rate Loans, 3.25%; and (iv) in the case of Swingline Loans maintained as (A) Base Rate Loans, 2.25% and (B) Euro Rate Loans, 3.25%. From and after each day of delivery of any certificate delivered in accordance with the first sentence of the following paragraph indicating an entitlement to a different margin for any Tranche of Loans (other than Tranche B Term Loans) than that described in the immediately preceding sentence (each, a "Start Date") to and including the applicable End Date described below, the Applicable Margins for such Tranches of Loans (hereinafter, the "Adjustable Applicable Margins") shall be those set forth below opposite the Leverage Ratio indicated to have been achieved in any certificate delivered in accordance with the following sentence:

Multicurrency Multicurrency Facility Revolving Facility Revolving Loan, Dollar Loan and Dollar Facility Revolving Tranche A Tranche A Swingline Facility Loan and Term Loan Term Loan Loan Revolving Loan Swingline Loan Euro Rate Base Rate Euro Rate Leverage Ratio Euro Rate Margin Base Rate Margin Margin Margin Margin -------------- ---------------- ---------------- ------ ------ ------ Equal to or greater 3.00 2.00 3.00 2.00 3.00 than 3.5 to 1.0 but less than 4.0 to 1.0 Equal to or greater 2.75 1.75 2.75 1.75 2.75 than 3.0 to 1.0 but less than 3.5 to 1.0 Less than 3.0 to 1.0 2.50 1.50 2.50 1.50 2.50

The Leverage Ratio used in a determination of Adjustable Applicable Margins shall be determined based on the delivery of a certificate of Holdings (each, a "Quarterly Pricing Certificate") by an Authorized Officer of Holdings to the Administrative Agent (with a copy to be sent by the Administrative Agent to each Lender), within 45 days of the last day of any Fiscal Quarter of Holdings, which certificate shall set forth the calculation of the Leverage Ratio as at the last day of the Test Period ended immediately prior to the relevant Start Date (but determined on a Pro Forma Basis solely to give effect to all Permitted Acquisitions (if any) and all Significant Asset Sales (if any) consummated on or prior to the date of delivery of such certificate and any Indebtedness incurred, assumed or permanently repaid in connection therewith) and the Adjustable Applicable Margins which shall be thereafter applicable (until same are changed or cease to apply in accordance with the following sentences); provided that at the time of the consummation of any Permitted Acquisition or Significant Asset Sale, an Authorized Officer of Holdings shall deliver to the Administrative Agent a certificate setting forth the calculation of the Leverage Ratio on a Pro Forma Basis (solely to give effect to all Permitted Acquisitions, if any, and all Significant Asset Sales (if any) consummated on or prior to the date of the delivery of -153- such certificate and any Indebtedness incurred or assumed in connection therewith) as of the last day of the last Calculation Period ended prior to the date on which such Permitted Acquisition or Significant Asset Sale is consummated for which financial statements have been made available (or were required to be made available) pursuant to Section 8.01(a) or (b), as the case may be, and the date of such consummation shall be deemed to be a Start Date and the Adjustable Applicable Margins which shall be thereafter applicable (until same are changed or cease to apply in accordance with the following sentences) shall be based upon the Leverage Ratio as so calculated. The Adjustable Applicable Margins so determined shall apply, except as set forth in the succeeding sentence, from the relevant Start Date to the earliest of (x) the date on which the next certificate is delivered to the Administrative Agent, (y) the date on which the next Permitted Acquisition or Significant Asset Sale is consummated or (z) the date which is 45 days following the last day of the Test Period in which the previous Start Date occurred (such earliest date, the "End Date"), at which time, if no certificate has been delivered to the Administrative Agent indicating an entitlement to new Adjustable Applicable Margins (and thus commencing a new Start Date), the Adjustable Applicable Margins shall be those set forth in the first sentence of this definition (such Adjustable Applicable Margins as so determined, the "Highest Adjustable Applicable Margins"). Notwithstanding anything to the contrary contained above in this definition, the Adjustable Applicable Margins shall be the Highest Adjustable Applicable Margins (x) at all times during which there shall exist any Specified Default or any Event of Default and (y) at all times prior to the date of delivery of the financial statements pursuant to Section 8.01(b) for the Fiscal Quarter ended September 30, 2003. "Applicable Multicurrency Facility Commitment Fee Percentage" shall mean, for any day, (i) in the event the Total Unutilized Multicurrency Facility Revolving Loan Commitment in effect on such day is greater than or equal to 66% of the Total Multicurrency Facility Revolving Loan Commitment as in effect on such day, 1.00%, (ii) in the event the Total Unutilized Multicurrency Facility Revolving Loan Commitment in effect on such day is (x) greater than or equal to 33% of the Total Multicurrency Facility Revolving Loan Commitment as in effect on such day and (y) less than 66% of the Total Multicurrency Facility Revolving Loan Commitment as in effect on such day, 0.750%, and (iii) in the event the Total Unutilized Multicurrency Facility Revolving Loan Commitment in effect on such day is less than 33% of the Total Multicurrency Facility Revolving Loan Commitment as in effect on such day, 0.500%. For purposes of this definition, the Total Unutilized Multicurrency Facility Revolving Loan Commitment and the Total Multicurrency Facility Revolving Loan Commitment as in effect on any day shall be determined after the close of business (New York time) on such day, following adjustments to such amounts for activity on such day. "Applicable Prepayment Percentage" shall mean, at any time, (I) for purposes of Section 4.02(g), 75%; provided that, so long as no Default or Event of Default is then in existence, (i) if at any time the Leverage Ratio is less than 3.75:1.00 (as set forth in an officer's certificate delivered pursuant to Section 8.01(e) for the Fiscal Quarter or Fiscal Year of Holdings then last ended), the Applicable Prepayment Percentage shall instead be 50% and (ii) if at any time the Leverage Ratio is less than 3.25:1.00 (as set forth in an officer's certificate delivered pursuant to Section 8.01(e) for the Fiscal Quarter or Fiscal Year of Holdings then last ended), the Applicable Prepayment Percentage shall instead be 0% and (II) for purposes of Section 4.02(e), -154- 100%; provided that, so long as (i) no Default or Event of Default is then in existence, (ii) the Credit Agreement Parties shall have satisfied all of their obligations pursuant to Section 8.22, (iii) the Capital Call Agreement shall have terminated in accordance with its terms, (iv) the Bank Debt Leverage Ratio is less than 1.50:1.00 (as set forth in an officer's certificate delivered pursuant to Section 8.01(e) for the Fiscal Quarter or Fiscal Year of Holdings then last ended), and (v) Holdings and the U.S. Borrower shall have substantially concurrently (I) applied 50% of the Net Cash Proceeds from the respective issuance of equity as a mandatory repayment and/or commitment reduction pursuant to Section 4.02(e) and (II) utilized 50% of the Net Cash Proceeds not required to be applied as a mandatory repayment and/or commitment reduction pursuant to Section 4.02(e) (as a result of the reduction of the Applicable Prepayment Percentage as contemplated by this proviso) to redeem New Senior Notes or Existing Senior Notes in accordance with the requirements of clause (z) of the proviso appearing in Section 9.14(i), the Applicable Prepayment Percentage shall instead be 50%. "Asset Sale" shall mean any sale, transfer or other disposition by Holdings or any of its Subsidiaries to any Person other than the U.S. Borrower or any Wholly-Owned 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 Holdings of its own capital stock) of Holdings or such Subsidiary other than (i) sales, transfers or other dispositions of inventory made in the ordinary course of business, (ii) other sales and dispositions that generate Net Sale Proceeds of less than $5,000,000 in the aggregate in any Fiscal Year of Holdings, (iii) the Sale-Leaseback Transaction consummated on the Initial Borrowing Date or (iv) sales or liquidations of Cash Equivalents, it being understood and agreed that the grant of a Lien by Holdings or any of its Subsidiaries in favor of another Person shall not in and of itself constitute an "Asset Sale" for purposes of this definition. "Assignment and Assumption Agreement" shall mean the Assignment and Assumption Agreement substantially in the form of Exhibit K (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, 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, the Swingline Lender, the respective Issuing Lender and the respective Bank Guaranty Issuer; (ii) delivering financial information and officer's certificates pursuant to this Agreement, the chief financial officer, any treasurer or other financial officer of Holdings or 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 Holdings or the U.S. Borrower. "Available Currency" shall mean (i) with respect to Tranche A Term Loans, Tranche B Term Loans, Dollar Facility Revolving Loans, Dollar Facility Swingline Loans and Dollar Facility Letters of Credit, Dollars and (ii) with respect to Multicurrency Facility Revolving Loans, Multicurrency Facility Swingline Loans, Multicurrency Facility Letters of Credit and Bank Guaranties, Dollars and Euros. -155- "Bank Debt Leverage Ratio" shall mean on any date of determination the ratio of (i) Consolidated Bank 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 Bank Debt Leverage Ratio shall be determined on a Pro Forma Basis in accordance with clause (iv) of the definition of Pro Forma Basis contained herein. "Bank Guaranty" shall have the meaning provided in Section 2B.01(a). "Bank Guaranty Fees" shall have the meaning provided in Section 3.01(e). "Bank Guaranty Issuer" shall mean (i) any RL Lender (and any of such RL Lender's affiliates and/or branches) which at the request of the Bermuda Borrower and with the consent of the Administrative Agent agrees, in such RL Lender's sole discretion, to become a Bank Guaranty Issuer for the purpose of issuing Bank Guaranties pursuant to Section 2B and (ii) with respect to the Existing Bank Guaranties, the Lender (and any of such 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 and (ii) the aggregate amount of all Unreimbursed Payments (taking the Dollar Equivalent of any amounts owed in Euros) in respect of all Bank Guaranties at such time. "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 corporation 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 and (y) the Prime Lending Rate at such time. "Base Rate Loan" shall mean (i) each Dollar Denominated Swingline Loan, (ii) each other Dollar Denominated 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 and (iii) each outstanding Multicurrency Facility Revolving Loan and Multicurrency Facility Swingline Loan after the conversion thereof pursuant to Section 1.14. "Bermuda Borrower" shall have the meaning provided in the first paragraph of this Agreement. "Bermuda Borrower Dollar Facility Letter of Credit" shall mean each Dollar Facility Letter of Credit (which must be denominated in Dollars) issued for the account of the Bermuda Borrower pursuant to Section 2A.01. "Bermuda Borrower Dollar Facility Letter of Credit Outstandings" shall mean, at any time, the sum of (i) the aggregate Stated Amount of all outstanding Bermuda Borrower -156- Dollar Facility Letters of Credit and (ii) the aggregate amount of all Unpaid Drawings in respect of all Bermuda Borrower Dollar Facility Letters of Credit. "Bermuda Borrower Dollar Facility Revolving Loan" shall have the meaning provided in Section 1.01(d). "Bermuda Borrower Dollar Facility Revolving Note" shall have the meaning provided in Section 1.05(a). "Bermuda Borrower Dollar Facility Swingline Loan" shall have the meaning provided in Section 1.01(f). "Bermuda Borrower Dollar Facility Swingline Note" shall have the meaning provided in Section 1.05(a). "Bermuda Partnership" shall mean Dole Foreign Holdings, Ltd., a limited liability corporation 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(d). "Bermuda Partnership Partner #2" shall mean Dole Ocean Cargo Express, Inc., a corporation organized under the laws of Nevada and a Wholly-Owned Subsidiary of the U.S. Borrower, and any successor thereto by way of a merger or consolidation permitted by Section 9.01(d). "Bermuda Partnership Partners" shall mean and include Bermuda Partnership Partner #1 and Bermuda Partnership Partner #2. "B/G Participation Percentages" shall have the meaning provided in Section 2B.04(a). "B/G Supportable Indebtedness" shall mean (i) obligations of the Wholly-Owned Foreign Subsidiaries of the U.S. Borrower (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, custom authorities or with respect to import and/or export licenses and (ii) such other obligations of Wholly-Owned Foreign Subsidiaries of the U.S. Borrower 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. "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 (or from the Swingline Lender, in the case of -157- Swingline Loans) on a given date (or resulting from a conversion or conversions on such date), having in the case of Euro Rate Loans (other than Euro Denominated Swingline Loans) the same Interest Period, provided that Base Rate Loans incurred pursuant to Section 1.10(b) shall be considered part of the related Borrowing of Eurodollar Loans. "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, and payments of principal, Unpaid Drawings, Unreimbursed Payments and interest on or with respect to, Euro Denominated Loans, any Euro Denominated Letters of Credit or any Euro Denominated Bank Guaranties, any day which is a Business Day described in clause (i) and which is also (A) a day for trading by and between banks in the London interbank market and which shall not be a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close in London or New York City and (B) in relation to any payment in Euros, a day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open. "Business Segment" shall mean a reportable segment as discussed in Statement of Financial Accounting Standards No. 131 "Disclosure about Segments of an Enterprise and Related Information". "Calculation Period" shall mean, with respect to any Permitted Acquisition, any Significant Asset Sale or any other event expressly required to be calculated on a Pro Forma Basis pursuant to the terms of this Agreement, the Test Period most recently ended prior to the date of such Permitted Acquisition, Significant Asset Sale or other event. "Capital Call Agreement" shall have the meaning provided such term in Section 5.14(e). "Capital Expenditures" shall mean, with respect to any Person, for any period, all expenditures by such Person which should be capitalized in accordance with U.S. GAAP during such period, including, without duplication, all such expenditures with respect to fixed or capital assets (including, without limitation, expenditures for maintenance and repairs which should be capitalized in accordance with U.S. GAAP) and the amount of all Capitalized Lease Obligations incurred by such Person during such period. "Capital Lease," as applied to any Person, shall mean any lease of any Property by that Person as lessee which, in conformity with U.S. GAAP, is accounted for as a capital lease on the balance sheet of that Person. "Capitalized Lease Obligations" of any Person shall mean all obligations under 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, pounds sterling and, in the case of any of Foreign Subsidiaries of the U.S. Borrower, such local currencies held by them from time -158- to time in the ordinary course of their businesses, (ii) securities issued or directly fully guaranteed or insured by the governments of the United States, the United Kingdom, Sweden, Switzerland, Japan, Canada and members of the European Union or any agency or instrumentality thereof (provided that the full faith and credit of the respective such government is pledged in support thereof) having maturities of not more than six months from the date of acquisition, (iii) securities issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within six months from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody's, (iv) certificates of deposit and eurodollar time deposits with maturities of six months or less from the date of acquisition, bankers' acceptances with maturities not exceeding six months and overnight bank deposits, in each case with any domestic commercial bank or commercial bank of a foreign country recognized by the United States, (x) in the case of a domestic commercial bank, having capital and surplus in excess of $500,000,000 and outstanding debt which is rated "A" (or similar equivalent thereof) or higher by at least one nationally recognized statistical rating organization (as defined under Rule 436 under the Securities Act) and (y) in the case of a foreign commercial bank, having capital and surplus in excess of $250,000,000 (or the foreign currency equivalent thereof), (v) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (ii) and (iv) above entered into with any financial institution meeting the qualifications specified in clause (iv) above, (vi) commercial paper having a rating of at least A-1 from S&P or 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) Holdings shall at any time cease to own directly 100% of the 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 Permitted Holders shall at any time and for any reason fail to own at least 75% of both the economic and voting interest in Holdings' capital stock, (iv) the Board of Directors of Holdings shall cease to consist of a majority of Continuing Directors, or (v) a "change of control" or similar event shall occur as provided in any New Senior Notes Documents, any Existing Senior Notes Document or any Qualified Preferred Stock (or certificate of designation governing the same). "Change of Law" shall have the meaning provided in Section 10.06. "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to the Code are to the Code, as in effect at the date of this Agreement and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor. -159- "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 cash and Cash Equivalents delivered as collateral pursuant to Section 4.02 or 10 or any Credit Document and all Additional Collateral, if any. "Collateral Agent" shall mean DBAG, acting as collateral agent for the Secured Creditors. "Collective Bargaining Agreements" shall have the meaning provided in Section 5.19. "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. "Commitment" shall mean any of the commitments of any Lender, i.e., whether the Tranche A Term Loan Commitment, the Tranche B Term Loan Commitment, the Multicurrency Facility Revolving Loan Commitment or the Dollar Facility Revolving Loan Commitment of such Lender. "Common Equity Financing" shall have the meaning provided in Section 5.09(a). "Common Equity Financing Documents" shall mean all of the agreements governing or relating to the Common Equity Financing, in each case as the same may be amended, modified and/or supplemented from time to time in accordance with the terms thereof. "Company" shall mean any corporation, limited liability company, partnership or other business entity (or the adjectival form thereof, where appropriate). "Consolidated Bank Debt" at any time shall mean the sum of (i) the aggregate principal amount of all Term Loans outstanding at such time, (ii) the Aggregate Dollar Facility RL Exposure at such time and (iii) the Aggregate Multicurrency Facility RL Exposure at such time. "Consolidated Current Assets" shall mean, at any time, the current assets of Holdings and its Consolidated Subsidiaries at such time determined on a consolidated basis. "Consolidated Current Liabilities" shall mean, at any time, the current liabilities of Holdings and its Consolidated Subsidiaries determined on a consolidated basis, but excluding the current portion of, and accrued but unpaid interest on, any Indebtedness under this Agreement and any other long-term Indebtedness which would otherwise be included therein. -160- "Consolidated Debt" shall mean, at any time, the sum of (without duplication) (i) all Indebtedness of Holdings 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 Holdings and its Consolidated Subsidiaries in accordance with U.S. GAAP, (ii) all Indebtedness of Holdings and its Consolidated Subsidiaries of the type described in clauses (ii) and (vii) of the definition of Indebtedness and (iii) all Contingent Obligations of Holdings and its Consolidated Subsidiaries in respect of Indebtedness of any third Person of the type referred to in preceding clauses (i) and (ii); 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 Holdings 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 Debt", (x) for purposes of this definition, the amount of Indebtedness in respect of the Interest Rate Protection Agreements, Other Hedging Agreements and Commodities Agreements shall be at any time the unrealized net loss position, if any, of Holdings and/or its Consolidated Subsidiaries thereunder on a marked-to-market basis determined no more than one month prior to such time, (y) obligations arising under Synthetic Leases shall be included in determining Consolidated Debt (other than (I) obligations under the HQ Lease Agreements, to the extent such obligations are outstanding under Section 9.04(xxii) and (II) successive refinancings of the obligations described in preceding clause (I), to the extent such obligations are outstanding under Section 9.04(vii)) and (z) any Preferred Equity of Holdings or any of its Consolidated Subsidiaries (but excluding any Qualified Preferred Stock) shall be treated as Indebtedness, with an amount equal to the greater of the liquidation preference or the maximum fixed repurchase price of any such outstanding Preferred Equity deemed to be a component of Consolidated Debt. "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 Holdings 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 non-cash charges accrued in such period in connection with the termination of the U.S. Borrower's long-term employee incentive plan during such period, to the extent same (I) were deducted in arriving at Consolidated EBIT for such period and (II) were accrued after March 22, 2003, (iii) any other non-cash charges incurred in such period to the extent that same were deducted in arriving at Consolidated EBIT for such period, and (iv) the amount of all fees and expenses incurred in connection with the Transaction for such period to the extent same were deducted in arriving at Consolidated EBIT for such period and (v) 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 -161- made during such period in connection with non-cash charges accrued in a prior period in connection with the termination of the U.S. Borrower's long-term employee incentive plan, to the extent such non-cash charges were added back pursuant to clause (x)(ii) above in a prior period and (iii) 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)(iii) above in a prior period. Notwithstanding anything to the contrary contained above, for purposes of determining the Leverage Ratio, to the extent Consolidated EBITDA is to be determined for any Test Period which ends prior to the first anniversary of the Initial Borrowing Date, Consolidated EBITDA for all portions of such period occurring prior to the Initial Borrowing Date shall be calculated in accordance with the definition of Test Period contained herein. It is understood and agreed that Consolidated EBITDA (as calculated pursuant to this definition) is not required to be adjusted to reflect a reduction in rent expense (arising as a result of the implementation of FASB Interpretation No. 46 ("Consolidation of Variable Interest Entities")) by virtue of the application of Section 13.07 (which has the effect of, among other things, freezing U.S. GAAP as used in determining Consolidated EBITDA on the terms provided therein and eliminating the effects of such accounting change for purposes of this definition). "Consolidated Fixed Charge Coverage Ratio" shall mean, for any period, the ratio of (x) Consolidated EBITDA for such period to (y) Consolidated Fixed Charges for such period. "Consolidated Fixed Charges" shall mean, for any period, the sum of (i) Consolidated Interest Expense for such period, (ii) the scheduled principal amount of all amortization payments on all Indebtedness (including the principal component of all Capitalized Lease Obligations but excluding payments pursuant to the Refinancing) of Holdings and its Consolidated Subsidiaries for such period (as determined on the first day of the respective period), (iii) the amount of all Capital Expenditures made by Holdings and its Consolidated Subsidiaries during such period (other than Capital Expenditures made pursuant to Section 9.12(c), (d) or (e)), (iv) all Dividends (excluding dividends paid in kind through the issuance of additional shares of capital stock of Holdings) actually paid by Holdings during such period and (v) the amount of all cash payments made by Holdings and its Consolidated Subsidiaries during such period in respect of income taxes or income tax liabilities, net of any refunds received during such period. "Consolidated Interest Coverage Ratio" shall mean, for any period, the ratio of (x) Consolidated EBITDA for such period to (y) Consolidated Interest Expense for such period. "Consolidated Interest Expense" shall mean, for any period, (i) the total consolidated interest expense of Holdings and its Consolidated Subsidiaries (including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bank guaranties) for such period (calculated without regard to any limitations on payment thereof), adjusted to exclude (to the extent same would otherwise be included in the calculation above in this clause (i)) the amortization of any deferred financing costs for such period, plus (ii) without duplication, (x) that portion of Capitalized Lease Obligations of Holdings and its Consolidated Subsidiaries on a consolidated basis representing the interest factor for such period and (y) the "deemed interest expense" (i.e., the interest expense which -162- would have been applicable if the respective obligations were structured as on-balance sheet financing arrangements) with respect to all Indebtedness of Holdings and its Consolidated Subsidiaries of the type described in clause (viii) of the definition of Indebtedness contained herein for such period. "Consolidated Net Income" shall mean, for any period, the net income (or loss) of Holdings 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 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 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 any such assets so sold shall be comprised of "non-core" assets which (i) are not material to the operations of the U.S. Borrower and its Subsidiaries and (ii) generated an insignificant portion of Consolidated EBITDA during the twelve month period prior to the date of such 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 -163- business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the lesser of (x) the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith and (y) the stated amount of such Contingent Obligation. "Continuing Directors" shall mean the directors of Holdings on the Initial Borrowing Date and each other director if such director's election to, or nomination for the election to, the Board of Directors of Holdings is recommended or approved by a majority of then Continuing Directors. "Co-Syndication Agent" shall have the meaning provided in the first paragraph of this Agreement and shall include any successor to a Co-Syndication Agent appointed pursuant to Section 12.10. "Credit Agreement Party" shall mean Holdings and each Borrower. "Credit Documents" shall mean this Agreement, the Notes, each Subsidiaries Guaranty, the Capital Call Agreement, the Intercompany Subordination Agreement, each Special Colombian Put Note and each Special Colombian Put Note Agreement (after the execution and delivery thereof), the Canadian Bond, each Security Document 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 Sections 8.11, 8.12 and/or 9.17. "Credit Event" shall mean the making of a Loan (other than a Revolving Loan made pursuant to a Mandatory Borrowing), the issuance of a Letter of Credit or the issuance of a Bank Guaranty. "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. "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. "Dividend" shall have the meaning provided in Section 9.06. -164- "Documents" shall mean and include (i) the Credit Documents, (ii) the Acquisition Documents, (iii) the Common Equity Financing Documents, (iv) the New Senior Notes Documents, (v) the Intercompany Distribution Transaction Documents, (vi) the Sale-Leaseback Transaction Documents, (vii) Existing Senior Notes Documents and the Existing Senior Notes Supplement, (viii) the Foreign Asset Transfer Documents and (ix) the Refinancing Documents. "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 and (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 and (ii) the aggregate amount of all Unpaid Drawings with respect to Dollar Denominated Letters of Credit at such time. "Dollar Denominated Loan" shall mean all Loans denominated in Dollars, which shall include each Tranche A Term Loan, each Tranche B Term Loan, each Dollar Facility Revolving Loan, each Dollar Facility Swingline Loan, each Multicurrency Facility Revolving Loan made in Dollars and each Multicurrency Facility Swingline Loan made in Dollars, as well as each Multicurrency Facility Revolving Loan or Multicurrency Facility Swingline Loan converted into Dollars in accordance with the provisions of Section 1.14. "Dollar Denominated Revolving Loan" shall mean all Revolving Loans incurred in Dollars, including all Multicurrency Facility Revolving Loans denominated in Dollars and all Dollar Facility Revolving Loans. "Dollar Denominated Swingline Loan" shall mean all Swingline Loans incurred in Dollars, including all Multicurrency Facility Swingline Loans denominated in Dollars and all Dollar Facility Swingline Loans. "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 -165- for purchase on such date with respect to Euro Denominated Revolving Loans and on the date of any determination thereof for purchase on such date with respect to Euro Denominated Swingline Loans (or, in the case of any determination pursuant to Section 1.14 or 13.23 or Section 26 (or any analogous provision) of any Subsidiaries Guaranty, on the date of determination); provided that (w) the Dollar Equivalent of any Unpaid Drawing shall be determined at the time the drawing under the related Letter of Credit was paid or disbursed by the Issuing Lender, (x) the Dollar Equivalent of any Unreimbursed Payment shall be determined at the time the payment under the related Bank Guaranty was made or disbursed by the respective Bank Guaranty Issuer, (y) following the occurrence of a Sharing Event, the Dollar Equivalent of any Unpaid Drawing or unreimbursed payment under a Multicurrency Facility Letter of Credit expressed in Euros shall be determined on the later of the time the drawing under the related Letter of Credit was paid or disbursed by the Issuing Lender or the date of the occurrence of the Sharing Event and (z) following the occurrence of a Sharing Event, the Dollar Equivalent of any Unreimbursed Payment under a Bank Guaranty expressed in Euros shall be determined on the later of the time the payment under the related Bank Guaranty was made or disbursed by the Bank Guaranty Issuer or the date of the occurrence of the Sharing Event, provided further, that for purposes of (x) determining compliance with Sections 1.01(c), (e) and (g), 2A.01(c), 2B.01(c), 4.01(a) and 6A.01 and (y) calculating Fees pursuant to Section 3.01 (except Fees which are expressly required to be paid in a currency other than Dollars 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 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) on the last Business Day of each calendar month, provided, however, that at any time during a calendar month, if the Aggregate Multicurrency Facility RL Exposure (for the purposes of the determination thereof, using the Dollar Equivalent as recalculated based on the spot exchange rate therefor as quoted in 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) on the respective date of determination pursuant to this exception) would exceed 85% of the Total Multicurrency Facility Revolving Loan 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 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), which rates shall remain in effect until the last Business Day of such calendar month or such earlier date, if any, as the rate is reset pursuant to this proviso. 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. "Dollar Facility Letter of Credit" shall mean each Letter of Credit (which must be denominated in Dollars) issued to the U.S. Borrower or the Bermuda Borrower pursuant to Section 2A.01 and designated as such by the respective Borrower in the respective Letter of Credit Request. "Dollar Facility Letter of Credit Outstandings" shall mean, at any time, the sum of (i) the aggregate Stated Amount of all outstanding Dollar Facility Letters of Credit and (ii) the aggregate amount of all Unpaid Drawings in respect of all Dollar Facility Letters of Credit. -166- "Dollar Facility RL Lender" shall mean any Lender with a Dollar Facility Revolving Loan Commitment (without giving effect to any termination of the Total Dollar Facility Revolving Loan Commitment if any Dollar Facility Swingline Loans or Dollar Facility Letter of Credit Outstandings remain outstanding) or outstanding Dollar Facility Revolving Loans (or any participation in any Dollar Facility Letter of Credit Outstandings). "Dollar Facility RL Percentage" of any Dollar Facility RL Lender at any time shall be that percentage which is equal to a fraction (expressed as a percentage) the numerator of which is the Dollar Facility Revolving Loan Commitment of such Dollar Facility RL Lender at such time and the denominator of which is the Total Dollar Facility Revolving Loan Commitment at such time, provided that if any such determination is to be made after the Total Dollar Facility Revolving Loan Commitment (and the related Dollar Facility Revolving Loan Commitments of the Lenders) has (or have) terminated, the determination of such percentages shall be made immediately before giving effect to such termination. "Dollar Facility Revolving Loan" shall have the meaning provided in Section 1.01(d). "Dollar Facility Revolving Loan Commitment" shall mean, for each Lender, the amount set forth opposite such Lender's name on Schedule I hereto directly below the column entitled "Dollar Facility Revolving Loan Commitment", as same may be (x) reduced from time to time and/or terminated pursuant to Section 3.02, 3.03, 4.02 and/or 10 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). "Dollar Facility Revolving Note" shall have the meaning provided in Section 1.05(a). "Dollar Facility Swingline Loan" shall have the meaning provided in Section 1.01(f). "Dollar Facility Swingline Note" shall have the meaning provided in Section 1.05(a). "Domestic Subsidiary" shall mean, as to any Person, any Subsidiary of such Person incorporated or organized in the United States or any State or territory thereof. "Effective Date" shall have the meaning provided in Section 13.10. "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 Holdings and its Subsidiaries and Affiliates. "Employee Benefit Plans" shall have the meaning set forth in Section 5.19. -167- "End Date" shall have the meaning provided in the definition of Applicable Margin. "Environmental Claims" shall mean any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of non-compliance or violation, investigations or proceedings relating in any way to any violation (or alleged violation) by Holdings or any of its Subsidiaries under any Environmental Law or any permit issued to Holdings or any of its Subsidiaries under any such law (hereafter "Claims"), including, without limitation, (a) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable 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. "Equity Investors" shall mean, collectively, David H. Murdock, the David H. Murdock Living Trust and Castle & Cooke Holdings, Inc. "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 at the date of this Agreement and any subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor. "ERISA Affiliate" shall mean each person (as defined in Section 3(9) of ERISA) which together with Holdings or a Subsidiary of Holdings would be deemed to be a "single employer" (i) within the meaning of Section 414(b), (c), (m) or (o) of the Code or (ii) as a result of Holdings or a Subsidiary of Holdings being or having been a general partner of such Person. "Euro B/G Face Amount" of each Euro Denominated Bank Guaranty shall, at any time, mean the maximum amount payable under such Bank Guaranty (expressed in Euros) (in each case determined without regard to whether any conditions to payment thereunder could then be met, but after giving effect to all previous payments (if any) made thereunder). "Euro Denominated Bank Guaranty" shall mean each Bank Guaranty denominated in Euros. -168- "Euro Denominated Bank Guaranty Outstandings" shall mean, at any time, the sum of (i) the aggregate Face Amount of all outstanding Euro Denominated Bank Guaranties at such time and (ii) the aggregate amount of all Unreimbursed Payments with respect to Euro Denominated Bank Guaranties at such time. "Euro Denominated Letter of Credit" shall mean each Letter of Credit denominated in Euros. "Euro Denominated Letter of Credit Outstandings" shall mean, at any time, the sum of (i) the aggregate Stated Amount of all outstanding Euro Denominated Letters of Credit at such time and (ii) the aggregate amount of all Unpaid Drawings with respect to Euro Denominated Letters of Credit at such time. "Euro Denominated Loan" shall mean all Loans denominated in Euros, including all Euro Denominated Revolving Loans and all Euro Denominated Swingline Loans. "Euro Denominated Revolving Loan" shall mean each Multicurrency Facility Revolving Loan denominated in Euros at the time of the incurrence thereof. "Euro Denominated Swingline Loan" shall mean each Multicurrency Facility Swingline Loan denominated in Euros at the time of the incurrence thereof. "Euro Equivalent" shall mean, at any time for the determination thereof, the amount of Euros which could be purchased with the amount of Dollars involved in such computation at the spot rate of exchange 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 with respect to Euro Denominated Revolving Loans and on the date of any determination thereof for purchase on such date with respect to Euro Denominated Swingline Loans (or, in the case of any determination pursuant to Section 1.14 or 13.23 or Section 26 (or any analogous provision) of any Subsidiaries Guaranty, on the date of determination). "Euro L/C Stated Amount" of each Euro Denominated Letter of Credit shall, at any time, mean the maximum amount available to be drawn thereunder (expressed in Euros) (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). "Euro LIBOR" shall mean, with respect to each Borrowing of Euro Denominated Revolving Loans, (i) the rate per annum for deposits in Euros as determined by the Administrative Agent for a period corresponding to the duration of the relevant Interest Period which appears on Reuters Page EURIBOR-01 (or any successor page) at approximately 11:00 A.M. (Brussels time) on the date which is two Business Days prior to the commencement of such Interest Period or (ii) if such rate is not shown on Reuters Page EURIBOR-01 (or any successor page), the average offered quotation to prime banks in the Euro-zone interbank market by the Administrative Agent for Euro deposits of amounts comparable to the principal amount of the Euro Denominated Loan to be made by the Administrative Agent as part of such Borrowing with maturities comparable to the Interest Period to be applicable to such Loan (rounded upward to the next whole multiple of 1/16 of 1%), determined as of 11:00 A.M. (Brussels time) on the date which is two Business Days prior to the commencement of such Interest Period; provided that in -169- the event the Administrative Agent has made any determination pursuant to Section 1.10(a)(i) in respect of Loans denominated in Euros, or in the circumstances described in clause (i) to the proviso to Section 1.10(b) in respect of Loans denominated in Euros, Euro LIBOR determined pursuant to this definition shall instead be the rate determined by the Administrative Agent as the all-in-cost of funds for the Administrative Agent (or such other Lender) to fund a Borrowing of Loans denominated in Euros with maturities comparable to the Interest Period applicable thereto. "Euro Rate" shall mean and include each of the Eurodollar Rate, Euro LIBOR and the Overnight Euro Rate. "Euro Rate Loan" shall mean each Eurodollar Loan and each Euro Denominated Loan. "Eurodollar Loans" shall mean each Dollar Denominated Loan (excluding Swingline Loans) 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 U.S. Dollar Denominated Loan, (i) the arithmetic average (rounded upwards to the nearest 1/16 of 1%) of the offered quotation to first class banks in the interbank Eurodollar market by DBAG for U.S. dollar deposits of amounts in immediately available funds comparable to the principal amount of the applicable Eurodollar Loan for which the Eurodollar Rate is being determined with maturities comparable to the Interest Period for which such Eurodollar Rate will apply, as of approximately 10:00 A.M. (New York time) on the Interest Determination Date divided by (ii) a percentage equal to 100% minus the then stated maximum rate of all reserve requirements (including, without limitation, any marginal, emergency, supplemental, special or other reserves) applicable to any member bank of the Federal Reserve System in respect of Eurocurrency liabilities as defined in Regulation D (or any successor category of liabilities under Regulation D). The determination of the Eurodollar Rate by the Administrative Agent shall be conclusive and binding on the Borrowers absent demonstrable error. "Euros" and the designation "(euro)" 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" shall mean, for any period, the remainder of (a) the sum of, without duplication, (i) Adjusted Consolidated Net Income for such period and (ii) the decrease, if any, in Adjusted Consolidated Working Capital from the first day to the last day of such period, minus (b) the sum of, without duplication, (i) the aggregate amount of all Capital Expenditures made by Holdings and its Subsidiaries during such period (other than Capital Expenditures to the extent financed with equity proceeds, Equity Interests, asset sale proceeds, insurance proceeds or Indebtedness (other than with Revolving Loans or Swingline Loans)), (ii) the aggregate amount of permanent principal payments of Indebtedness for borrowed money of Holdings and its Subsidiaries and the permanent repayment of the principal component of Capitalized Lease Obligations of Holdings and its Subsidiaries during such period (other than -170- (A) repayments to the extent made with asset sale proceeds, equity proceeds, insurance proceeds or Indebtedness and (B) repayments of Loans, provided that repayments of Loans shall only be deducted in determining Excess Cash Flow if such repayments were (x) required as a result of a Scheduled Repayment under Section 4.02(b) or (y) made as a voluntary prepayment with internally generated funds (but in the case of a voluntary prepayment of Revolving Loans or Swingline Loans, only to the extent accompanied by a voluntary reduction to the Total Revolving Loan Commitment in an amount equal to such prepayment)) and (iii) the increase, if any, in Adjusted Consolidated Working Capital from the first day to the last day of such period. "Excess Cash Flow Payment Period" shall mean, with respect to any Excess Cash Payment Date, (i) in the case of the first Excess Cash Payment Date occurring after the Initial Borrowing Date, the period commencing on the first day of the 2d Fiscal Quarter of Fiscal Year 2003 and ending on December 31, 2003 and (ii) in the case of each subsequent Excess Cash Payment Date, the immediately preceding Fiscal Year of Holdings. "Excess Cash Payment Date" shall mean the date occurring 90 days after the last day of a Fiscal Year of Holdings (commencing with the Fiscal Year of Holdings ended closest to December 31, 2003). "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. "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 (but before giving effect to any actions to occur on such date pursuant to Section 1.14) of which (a) the numerator shall be the sum of (i) the RL Percentage of such Lender of (x) the aggregate outstanding principal of all Revolving Loans and Swingline Loans (taking the Dollar Equivalents of any amounts expressed in currencies other than Dollars on the date of the occurrence of the Sharing Event), (y) the aggregate amount of Letter of Credit Outstandings and (z) the aggregate amount of Bank Guaranty Outstandings and (ii) the aggregate principal amount of all outstanding Term Loans of such Lender, and (b) the denominator of which shall be the sum of (i) the sum of (x) the aggregate outstanding principal of all Revolving Loans and Swingline Loans (taking the Dollar Equivalents of any amounts expressed in currencies other than Dollars on the date of the occurrence of the Sharing Event), (y) the aggregate amount of Letter of Credit Outstandings and (z) the aggregate amount of Bank Guaranty Outstandings, 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 the Initial Borrowing Date) 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 Holdings or any of its Subsidiaries, except to the extent required to be pledged pursuant to Section 8.23; provided that (x) the collateral described in preceding clauses (i) and -171- (ii) shall cease to constitute "Excluded Collateral" upon the repayment in full of all Existing 2009 Senior Notes and 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 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 XV; provided that any Foreign Subsidiary listed on Part B of Schedule XV 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 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, 10.12(b), 10.12(c) and/or 10.13; provided that (i) any such deficiency or default shall relate solely to a Foreign Subsidiary of Holdings (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 10.13 had not been taken) shall not exceed $15,000,000. "Existing Credit Agreement" shall mean that certain Credit Agreement, dated as of July 29, 1996, among the U.S. Borrower and various financial institutions, as in effect on the Initial Borrowing Date. "Existing Indebtedness" shall mean and include Scheduled Existing Indebtedness and the Existing Senior Notes Documents. "Existing Indebtedness Agreements" shall have the meaning provided in Section 5.19. "Existing Bank Guaranties" shall have the meaning provided in Section 2B.01(d). "Existing Letters of Credit" shall have the meaning provided in Section 2A.01(d). "Existing Senior Notes To Be Refinanced" shall mean and include (i) the Existing 2003 Senior Notes Documents and (ii) the Existing 2005 Senior Notes Documents. "Existing Senior Notes Documents" shall mean and include (i) the Existing 2009 Senior Notes Documents, (ii) the Existing 2013 Senior Notes Documents, (iii) the Existing 2003 Senior Notes Documents and (iv) the Existing 2005 Senior Notes Documents. -172- "Existing Senior Notes Indenture Supplement" shall have the meaning provided in Section 5.10. "Existing 2005 Senior Notes" shall mean the U.S. Borrower's 6-3/8% Senior Notes due 2005, issued pursuant to the Existing 2005 Senior Notes Indenture, as in effect on the Initial Borrowing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. "Existing 2005 Senior Notes Documents" shall mean the Existing 2005 Senior Notes, the Existing 2005 Senior Notes Indenture and all other documents executed and delivered with respect to the Existing 2005 Senior Notes or Existing 2005 Senior Notes Indenture, as in effect on the Initial Borrowing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. "Existing 2005 Senior Notes Indenture" shall mean the Indenture, dated as of July 15, 1993, among the U.S. Borrower and the trustee therefor, as in effect on the Initial Borrowing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. "Existing 2009 Senior Notes" shall mean the U.S. Borrower's 7-1/4% Senior Notes due 2009, issued pursuant to the Existing 2009 Senior Notes Indenture, as in effect on the Initial Borrowing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. "Existing 2009 Senior Notes Documents" shall mean the Existing 2009 Senior Notes, the Existing 2009 Senior Notes Indenture and all other documents executed and delivered with respect to the Existing 2009 Senior Notes or Existing 2009 Senior Notes Indenture, as in effect on the Initial Borrowing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. "Existing 2009 Senior Notes Indenture" shall mean the Indenture, dated as of July 15, 1993, among the U.S. Borrower, any U.S. Subsidiary Guarantors from time to time party thereto and the trustee therefor, as in effect on the Initial Borrowing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. "Existing 2003 Senior Notes" shall mean the U.S. Borrower's 7% Senior Notes due 2003, issued pursuant to the Existing 2003 Senior Notes Indenture, as in effect on the Initial Borrowing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. "Existing 2003 Senior Notes Documents" shall mean the Existing 2003 Senior Notes, the Existing 2003 Senior Notes Indenture and all other documents executed and delivered with respect to the Existing 2003 Senior Notes or Existing 2003 Senior Notes Indenture, as in effect on the Initial Borrowing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. -173- "Existing 2003 Senior Notes Indenture" shall mean the Indenture, dated as of April 15, 1993, among the U.S. Borrower and the trustee therefor, as in effect on the Initial Borrowing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. "Existing 2013 Senior Notes" shall mean the U.S. Borrower's 7-7/8% Senior Notes due 2013, issued pursuant to the Existing 2013 Senior Notes Indenture, as in effect on the Initial Borrowing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. "Existing 2013 Senior Notes Documents" shall mean the Existing 2013 Senior Notes, the Existing 2013 Senior Notes Indenture and all other documents executed and delivered with respect to the Existing 2013 Senior Notes or Existing 2013 Senior Notes Indenture, as in effect on the Initial Borrowing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. "Existing 2013 Senior Notes Indenture" shall mean the Indenture, dated as of July 15, 1993, among the U.S. Borrower, any U.S. Subsidiary Guarantors from time to time party thereto and the trustee therefor, as in effect on the Initial Borrowing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. "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, except as such term is used in Section 2B.02 and except as provided in the definition of "Euro B/G Face Amount", the "Face Amount" of each Euro Denominated Bank Guaranty shall be, on any date of calculation, the Dollar Equivalent of the maximum amount payable in Euros thereunder (determined without regard to whether any conditions to payment could then be met but after giving effect to all previous payments made thereunder). "Facing Fee" shall have the meaning provided in Section 3.01(c). "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 Holdings, or the Subsidiary of Holdings selling such asset. "Federal Funds Rate" shall mean, for any period, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Lender 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 -174- 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. "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) 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 Holdings and its Subsidiaries ending on the Saturday nearest to December 31 of each calendar year. For purposes of this Agreement, any particular Fiscal Year shall be designated by reference to the calendar year in which the majority of such Fiscal Year falls. "Fleet" shall mean Fleet National Bank, in its individual capacity, and any successor corporation thereto by merger, consolidation or otherwise. "Foreign Asset Transfer" shall have the meaning provided in Section 5.08(b). "Foreign Asset Transfer Documents" shall mean the various documents and agreements entered into in connection with the Foreign Asset Transfer. "Foreign Credit Party" shall mean the Bermuda Borrower and each Foreign Subsidiary Guarantor. "Foreign Credit Party Pledge Agreement" shall have the meaning provided in Section 5.15(b). "Foreign Mortgaged Property" shall mean each Real Property located outside the United States and the States and territories thereof with respect to which a Mortgage is required to be delivered pursuant to the terms of this Agreement. -175- "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 Holdings or any one or more of its Subsidiaries primarily for the benefit of employees of Holdings or any of its Subsidiaries residing outside the United States of America, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code. "Foreign Pledge Agreement" shall have the meaning provided in Section 5.15(c). "Foreign Security Agreement" shall have the meaning provided in Section 5.17. "Foreign Security Document" shall mean each Security Document other than a U.S. Security Document. "Foreign Subsidiaries Guaranty" shall have the meaning provided in Section 5.14(b) and shall include any counterpart thereof and any other similar guaranty executed and delivered by any Foreign Subsidiary of Holdings pursuant to Section 8.11 or 9.17. "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 Holdings (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. "Foreign Unrestricted Subsidiary" of any Person shall mean any Foreign Subsidiary of such Person that is an Unrestricted Subsidiary. "Fronting Fee" shall have the meaning provided in Section 3.01(f). "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 to the extent that such Person constitutes a Secured Creditor under the Security Documents. "Guarantors" shall mean and include Holdings, the U.S. Borrower and each Subsidiary Guarantor. "Guaranty" shall mean and include the Holdings Guaranty, the U.S. Borrower's 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 -176- polychlorinated biphenyls, and radon gas; and (b) any chemicals, materials or substances defined as or included in the definition of "hazardous substances," "hazardous wastes," "hazardous materials," "restricted hazardous materials," "extremely hazardous wastes," "restrictive hazardous wastes," "toxic substances," "toxic pollutants," "contaminants" or "pollutants," or words of similar meaning and regulatory effect. "Highest Adjustable Applicable Margins" shall have the meaning provided in the definition of Applicable Margin contained herein. "Holdings" shall have the meaning provided in the first paragraph of this Agreement. "Holdings Common Stock" shall have the meaning provided in Section 7.13(a). "Holdings Equity Contribution" shall have the meaning provided in Section 5.09(a). "Holdings Guaranteed Obligations" shall mean (i) the principal and interest on each Note issued to each Lender, and all Loans made, under this Agreement, all reimbursement obligations and Unpaid Drawings with respect to Letters of Credit and all reimbursement obligations and Unreimbursed Payments with respect to Bank Guaranties, 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 Borrowers (or either of them) 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 and each other Credit Document and the due performance and compliance by each Borrower with all the terms, conditions and agreements contained in this Agreement and each other Credit Document to which it is a party and (ii) 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 U.S. Borrower or any of its Subsidiaries owing under any Interest Rate Protection Agreement or Other Hedging Agreement entered into by the U.S. Borrower or any of its Subsidiaries with any Lender or any affiliate thereof (even if such Lender subsequently ceases to be a Lender under this Agreement for any reason) so long as such Lender or affiliate 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. "Holdings Guaranteed Party" shall mean each Borrower and each Subsidiary of Holdings party to any Interest Rate Protection Agreement or Other Hedging Agreement with any Secured Creditor. "Holdings Guaranty" shall mean the guaranty of Holdings pursuant to Section 14. "HQ Lease Agreements" shall have the meaning provided such term in the U.S. Security Agreement. -177- "Indebtedness" shall mean, as to any Person, without duplication, (i) all indebtedness (including principal, interest, fees and charges) of such Person for borrowed money or for the deferred purchase price of property or services, (ii) the maximum amount available to be drawn or paid under all letters of credit, bankers' acceptances, bank guaranties and similar obligations issued for the account of such Person and all unpaid drawings and unreimbursed payments in respect of such letters of credit, bankers' acceptances, bank guaranties and similar obligations, (iii) all indebtedness of the types described in clause (i), (ii), (iv), (v), (vi) or (vii) of this definition secured by any Lien on any property owned by such Person, whether or not such indebtedness has been assumed by such Person (provided that, if the Person has not assumed or otherwise become liable in respect of such indebtedness, such indebtedness shall be deemed to be in an amount equal to the fair market value of the property to which such Lien relates as determined in good faith by such Person), (iv) the aggregate amount of all Capitalized Lease Obligations of such Person, (v) all obligations of such Person to pay a specified purchase price for goods or services, whether or not delivered or accepted, i.e., take-or-pay and similar obligations, (vi) all Contingent Obligations of such Person, and (vii) all obligations under any Interest Rate Protection Agreement, any Other Hedging Agreement, Commodity Agreements or under any similar type of agreement and (viii) obligations arising under Synthetic Leases. Notwithstanding the foregoing, Indebtedness shall not include trade payables, accrued expenses and deferred tax and other credits incurred by any Person in accordance with customary practices and in the ordinary course of business of such Person. "Individual Bermuda Borrower Dollar Facility RL Exposure" of any Dollar Facility RL Lender shall mean, at any time, the sum of (I) the aggregate principal amount of all Bermuda Borrower Dollar Facility Revolving Loans made by such Dollar Facility RL Lender and then outstanding, (II) the sum of such Dollar Facility RL Lender's L/C Participation Percentage in each then outstanding Bermuda Borrower Dollar Facility Letter of Credit multiplied by the sum of the Stated Amount of the respective Letter of Credit and any Unpaid Drawings relating thereto and (III) such Dollar Facility RL Lender's Dollar Facility RL Percentage multiplied by the aggregate principal amount of outstanding Bermuda Borrower Dollar Facility Swingline Loans. "Individual Dollar Facility RL Exposure" of any Dollar Facility RL Lender shall mean, at any time, the sum of (I) the aggregate principal amount of all Dollar Facility Revolving Loans made by such Dollar Facility RL Lender and then outstanding, (II) such Dollar Facility RL Lender's L/C Participation Percentage in each then outstanding Dollar Facility Letter of Credit multiplied by the sum of the Stated Amount of the respective Dollar Facility Letter of Credit and any Unpaid Drawings relating thereto and (III) such Dollar Facility RL Lender's Dollar Facility RL Percentage multiplied by the aggregate principal amount of all outstanding Dollar Facility Swingline Loans. "Individual Multicurrency Facility RL Exposure" of any Multicurrency Facility RL Lender shall mean, at any time, the sum of (I) the aggregate principal amount of all Multicurrency Facility Revolving Loans made by such Multicurrency Facility RL Lender and then outstanding (for this purpose, using the Dollar Equivalent of the principal amount of all Euro Denominated Revolving Loans made to the Bermuda Borrower and then outstanding), (II) such Multicurrency Facility RL Lender's L/C Participation Percentage in each then outstanding Multicurrency Facility Letter of Credit multiplied by the sum of the Stated Amount of the -178- respective Multicurrency Facility Letter of Credit and any Unpaid Drawings relating thereto (for this purpose, using the Dollar Equivalent of any amounts expressed in Euros), (III) such Multicurrency Facility RL Lender's Multicurrency Facility RL Percentage multiplied by the aggregate principal amount of outstanding Multicurrency Facility Swingline Loans (for this purpose, using the Dollar Equivalent of the principal amount of Euro Denominated Swingline Loans made to the Bermuda Borrower and then outstanding) and (IV) such Multicurrency Facility RL Lender's B/G Participation Percentage in each then outstanding Bank Guaranty multiplied by the sum of the Face Amount of the respective Bank Guaranty and any Unreimbursed Payments relating thereto (for this purpose, using the Dollar Equivalent of any amounts expressed in Euros). "Individual RL Facility Exposures" of any Lender shall mean, at any time, the sum of the Individual Multicurrency Facility RL Exposure and the Individual Dollar Facility RL Exposure of such Lender at such time. "Individual U.S. Borrower Dollar Facility RL Exposure" of any Dollar Facility RL Lender shall mean, at any time, the sum of (I) the aggregate principal amount of all U.S. Borrower Dollar Facility Revolving Loans made by such Dollar Facility RL Lender and then outstanding, (II) the sum of such Dollar Facility RL Lender's L/C Participation Percentage in each then outstanding U.S. Borrower Dollar Facility Letter of Credit multiplied by the sum of the Stated Amount of the respective U.S. Borrower Dollar Facility Letter of Credit and any Unpaid Drawings relating thereto and (III) such Dollar Facility RL Lender's Dollar Facility RL Percentage multiplied by the aggregate principal amount of outstanding U.S. Borrower Dollar Facility Swingline Loans. "Initial Borrowing Date" shall mean the date (which shall occur on the Effective Date) upon which the initial Borrowing of Loans occurs. "Initial Indebtedness to be Refinanced" shall mean and include (i) Indebtedness under the Existing Credit Agreement, (ii) certain Indebtedness of Foreign Subsidiaries under existing lines of credit, (iii) obligations of the U.S. Borrower and its Subsidiaries under certain container leases, (iv) reimbursement obligations with respect to certain existing letters of credit and bank guaranties and (v) all other Indebtedness of Holdings and its Subsidiaries outstanding immediately before the consummation of the Acquisition which is to be repaid or refinanced on the Initial Borrowing Date, including any such Indebtedness which is not permitted to remain outstanding after the Initial Borrowing Date pursuant to Section 5.11 or 9.04. Without limiting the foregoing, it understood and agreed that the aggregate amount of the "Initial Indebtedness to be Refinanced" shall not exceed $100,000,000. "Initial Refinancing" shall mean and include the various refinancing transactions described in Sections 5.11(a) and (b). "Intercompany Debt" shall mean any Indebtedness, payables or other obligations, whether now existing or hereafter incurred, owed by Holdings or any Subsidiary of Holdings to Holdings or any other Subsidiary of Holdings. -179- "Intercompany Distribution Transaction Documents" shall mean all of the documents and instruments entered into in connection with the Intercompany Distribution Transactions, in each case as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. "Intercompany Distribution Transactions" shall have the meaning provided in Section 5.09(b). "Intercompany Note" shall mean a promissory note evidencing intercompany loans made pursuant to Section 9.05(vi), in each case duly executed and delivered substantially in the form of Exhibit L, with blanks completed in conformity herewith (or such other form as may be approved by the Administrative Agent or the Required Lenders). "Intercompany Receivables Documents" shall have the meaning provided in Section 5.14(e). "Intercompany Scheduled Existing Indebtedness" shall have the meaning provided in Section 7.21. "Intercompany Subordination Agreement" shall have the meaning provided in Section 5.14(d). "Internally-Sourced Intercompany Distributions" shall have the meaning provided in Section 5.09(a). "Interest Determination Date" shall mean, with respect to any Euro Rate Loan (other than a Swingline Loan), the second Business Day prior to the commencement of any Interest Period relating to such Euro Rate Loan. "Interest Period" with respect to any Euro Rate Loan, shall mean the interest period applicable thereto, as determined pursuant to Section 1.09. "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) DBAG and any RL Lender which at the request of an Account Party and with the consent of the Administrative Agent agrees, in such RL Lender's sole discretion, to become an Issuing Lender for the purpose of issuing Letters of Credit pursuant to Section 2 and (ii) with respect to the Existing Letters of Credit, the Lender designated as the issuer thereof on Part A of Schedule XI shall be the Issuing Lender thereof. "Joint Lead Arrangers" shall mean DBSI, Scotia Capital and BAS, each in their capacities as Joint Lead Arrangers and Book Runners. "Judgment Currency" shall have the meaning provided in Section 13.23(a). -180- "Judgment Currency Conversion Date" shall have the meaning provided in Section 13.23(a). "L/C Participant" shall have the meaning provided in Section 2A.04(a). "L/C Participation Percentages" 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. "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. "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 (i) 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 pursuant to Section 1.13 and/or 13.04(b) and (ii) the Swingline Lender. 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 (including any Mandatory Borrowing), to fund its portion of any unreimbursed payment under Section 2A.04 or (ii) a Lender having notified the Administrative Agent and/or any Credit Agreement Party 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 2.01(a). "Letter of Credit Fees" shall have the meaning provided in Section 3.01(b). -181- "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 (taking the Dollar Equivalent of any amounts owed in currencies other than Dollars) in respect of all Letters of Credit at such time. "Letter of Credit Request" shall have the meaning provided in Section 2A.03(a). "Leverage Ratio" shall mean, on any date of determination, the ratio of (i) Consolidated 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, (i) Consolidated EBITDA for purposes of the Leverage Ratio shall be determined on a Pro Forma Basis in accordance with clause (iv) of the definition of Pro Forma Basis contained herein and (ii) Consolidated Debt for purposes of the Leverage Ratio as it relates to the definition of "Applicable Margin" shall be determined on a Pro Forma Basis in accordance with clause (iii) of the definition of "Pro Forma Basis" contained herein. "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 A Term Loan, each Tranche B Term Loan, each Revolving Loan and each Swingline Loan. "Loan-Sourced Intercompany Distributions" shall have the meaning provided in Section 5.09(b). "Local Law Pledge Agreement" shall have the meaning provided in Section 5.15(c). "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. "Management Agreements" shall have the meaning provided in Section 5.19. "Mandatory Borrowing" shall mean and include any Mandatory Multicurrency Facility RL Borrowing and any Mandatory Dollar Facility RL Borrowing. "Mandatory Cost" means the cost imputed to each Lender of compliance with any reserve asset requirements of the European Central Bank. "Mandatory Dollar Facility RL Borrowing" shall have the meaning provided in Section 1.01(h). -182- "Mandatory Multicurrency Facility RL Borrowing" shall have the meaning provided in Section 1.01(g). "Margin Regulations" shall mean, collectively, Regulation T, Regulation U and Regulation X. "Margin Stock" shall have the meaning provided in Regulation U. "Material Adverse Effect" shall mean (i) a material adverse effect on the business, properties, assets, nature of assets, operations, liabilities, condition (financial or otherwise) or prospects of (A) Holdings and its Subsidiaries taken as a whole or (B) the 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 (i) the occurrence of an Excluded Event shall not constitute a "Material Adverse Effect" for purposes of this definition and (ii) the impact of payments, costs and expenses made and/or incurred in connection with claims or litigation on the business, operations, financial condition and prospects of Holdings and its Subsidiaries shall not be taken into account in making any determination of "Material Adverse Effect," to the extent (and only to the extent) of the reserves Holdings and its Subsidiaries shall have established to cover such payments, costs and expenses on the Initial Borrowing Date, so long as such reserves (including the aggregate amount thereof) shall have been identified to the Agents in writing prior to the Initial Borrowing Date and all payments, costs and expenses for which such reserves have been established have been fully reflected in the Projections. "Material Foreign Subsidiary" shall mean, at any time, any Foreign Subsidiary of Holdings the net book value of the assets of which equals or exceeds $5,000,000 at such time. "Maturity Date" shall mean (i) with respect to Tranche A Term Loans, the Tranche A Term Loan Maturity Date, (ii) with respect to Tranche B Term Loans, the Tranche B Term Loan Maturity Date, (iii) with respect to Revolving Loans, the Revolving Loan Maturity Date and (vi) with respect to Swingline Loans, the Swingline Expiry Date. "Maximum Permitted Consideration" shall mean, with respect to any Permitted Acquisition, the sum (without duplication) of (i) the fair market value of the Holdings Common Stock (based on the average closing trading price of the Holdings Common Stock for the 20 trading days immediately prior to the date of such Permitted Acquisition on the stock exchange on which Holdings Common Stock is listed or, if Holdings Common Stock is not so listed, the good faith determination of the senior management of Holdings) issued (or to be issued) as consideration in connection with such Permitted Acquisition (including, without limitation, Holdings Common Stock which may be required to be issued as earnout consideration upon the achievement of certain future performance goals of the respective Acquired Entity or Business), (ii) the aggregate amount of all cash paid (or to be paid) by Holdings or any of its Subsidiaries in connection with such Permitted Acquisition (including, without limitation, payments of fees and costs and expenses in connection therewith) and all contingent cash purchase price or other earnout obligations of Holdings and its Subsidiaries incurred in connection therewith (as determined in good faith by Holdings), (iii) the aggregate principal amount of all Indebtedness -183- assumed, incurred and/or issued in connection with such Permitted Acquisition to the extent permitted by Section 9.04 and (iv) the fair market value (determined in good faith by senior management of Holdings) of all other consideration payable in connection with such Permitted Acquisition. "Maximum Swingline Amount" shall mean $15,000,000. "Maximum Waivable Amount" shall have the meaning provided in Section 4.02(k). "Merger" shall mean shall mean the merger of Acquisition Corp. with and into the U.S. Borrower (with the U.S. Borrower as the surviving corporation of such merger) pursuant to, and in accordance with the terms of, the Merger Agreement. "Merger Agreement" shall mean the Agreement and Plan of Merger, dated as of December 18, 2002, among Holdings, Acquisition Corp., David H. Murdock and the U.S. Borrower (including the schedules and exhibits thereto), as the same may be amended, modified and/or supplemented from time to time in accordance with the terms hereof and thereof. "Minimum Applicable Facing Fee" shall mean (x) in the case of all Letters of Credit (other than Euro Denominated Letters of Credit), $500 and (y) in the case of Euro Denominated Letters of Credit, (euro)500. "Minimum Applicable Fronting Fee" shall mean (x) in the case of all Bank Guaranties (other than Euro Denominated Bank Guaranties), $500 and (y) in the case of Euro Denominated Bank Guaranties, (euro)500. "Minimum Borrowing Amount" shall mean (i) in the case of Dollar Denominated Loans (excluding Dollar Denominated Swingline Loans and Dollar Denominated Revolving Loans maintained as Base Rate Loans), $5,000,000, (ii) in the case of Revolving Loans maintained from time to time as Base Rate Loans, $1,000,000, (iii) in the case of Euro Denominated Revolving Loans, (euro)1,000,000, (iv) in the case of Dollar Denominated Swingline Loans, $250,000 and (v) in the case of Euro Denominated Swingline Loans, (euro)250,000. "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), together with any assignment of leases and rents to be executed in connection therewith (as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof). "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. -184- "Mortgaged Property" shall mean each Real Property owned by Holdings or any of its Subsidiaries and required to be mortgaged pursuant to this Agreement (including, after the execution and delivery of any Additional Mortgage, the respective Additional Mortgaged Property). "Multicurrency Facility Letter of Credit" shall mean each Letter of Credit (which may be denominated in Dollars or Euros) issued to the Bermuda Borrower pursuant to Section 2A.01 and designated as such by the Bermuda Borrower in the respective Letter of Credit Request. "Multicurrency Facility Letter of Credit Outstandings" shall mean, at any time, the sum of (i) the aggregate Stated Amount of all outstanding Multicurrency Facility Letters of Credit and (ii) the aggregate amount of all Unpaid Drawings (taking the Dollar Equivalent of all amounts payable in Euros) in respect of all Multicurrency Facility Letters of Credit. "Multicurrency Facility RL Lender" shall mean each Lender which has a Multicurrency Facility Revolving Loan Commitment (without giving effect to any termination of the Total Multicurrency Facility Revolving Loan Commitment if any Multicurrency Facility Swingline Loans, Multicurrency Facility Letter of Credit Outstandings or Bank Guaranty Outstandings remain outstanding) or which has any outstanding Multicurrency Facility Revolving Loans (or an L/C Participation Percentage in any then outstanding Multicurrency Facility Letter of Credit Outstandings or a B/G Participation Percentage in any then outstanding Bank Guaranty Outstandings). "Multicurrency Facility RL Percentage" of any Multicurrency Facility RL Lender at any time shall be that percentage which is equal to a fraction (expressed as a percentage) the numerator of which is the Multicurrency Facility Revolving Loan Commitment of such Multicurrency Facility RL Lender at such time and the denominator of which is the Total Multicurrency Facility Revolving Loan Commitment at such time, provided that if any such determination is to be made after the Total Multicurrency Facility Revolving Loan Commitment (and the related Multicurrency Facility Revolving Loan Commitments of the Lenders) has (or have) terminated, the determination of such percentages shall be made immediately before giving effect to such termination. "Multicurrency Facility Revolving Loan" shall have the meaning provided in Section 1.01(c). "Multicurrency Facility Revolving Loan Commitment" shall mean, for each Lender, the amount set forth opposite such Lender's name on Schedule I hereto directly below the column entitled "Multicurrency Facility Revolving Loan Commitment", as same may be (x) reduced from time to time and/or terminated pursuant to Section 3.02, 3.03, 4.02 and/or 10, 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). "Multicurrency Facility Swingline Loan" shall have the meaning provided in Section 1.01(e). -185- "Multiemployer Plan" shall mean (i) any plan, as defined in Section 4001(a)(3) of ERISA, which is maintained or contributed to (or to which there is an obligation to contribute to) by Holdings or a Subsidiary of Holdings or an ERISA Affiliate and that is subject to Title IV of ERISA, and (ii) each such plan for the five year period immediately following the latest date on which Holdings, a Subsidiary of Holdings or an ERISA Affiliate maintained, contributed to or had an obligation to contribute to such plan. "Murdock" shall mean (i) David H. Murdock, individually, and as trustee for the David H. Murdock Living Trust and (ii) the David H. Murdock Living Trust, dated as of May 28, 1986, as amended. "Net Cash Proceeds" shall mean for any event requiring a reduction of the Total Revolving Loan Commitment and/or repayment of Term Loans pursuant to Section 3.03 or 4.02, as the case may be, 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) which is secured by the respective assets which were sold or otherwise disposed of, and (iv) the estimated net marginal increase in income taxes which will be payable by Holdings' consolidated group or any Subsidiary of Holdings with respect to the Fiscal Year in which the sale or other disposition occurs as a result of such sale or other disposition; provided, however, that such gross proceeds shall not include any portion of such gross cash proceeds which Holdings determines in good faith should be reserved for post-closing adjustments (to the extent Holdings delivers to the Lenders a certificate signed by its chief financial officer or treasurer, controller or chief accounting officer as to such determination), it being understood and agreed that on the day that all such post-closing adjustments have been determined (which shall not be later than six months following the date of the respective asset sale), the amount (if any) by which the reserved amount in respect of such sale or disposition exceeds the actual post-closing adjustments payable by Holdings or any of its Subsidiaries shall constitute Net Sale Proceeds on such date received by Holdings and/or any of its Subsidiaries from such sale or other disposition. "New Exchange Senior Notes" shall mean New Senior Notes which are substantially identical securities to the New Senior Notes issued on or prior to the Initial Borrowing Date, which New Exchange Senior Notes shall be issued pursuant to a registered exchange offer or -186- private exchange offer for the New Senior Notes and pursuant to the New Senior Notes Indenture. In no event will the issuance of any New Exchange Senior Notes increase the aggregate principal amount of New Senior Notes then outstanding or otherwise result in an increase in an interest rate applicable to the New Senior Notes. "New Senior Notes" shall mean the U.S. Borrower's 8-7/8% Senior Notes due 2011, issued pursuant to the New Senior Notes Indenture, as in effect on the Initial Borrowing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. As used herein, the term "New Senior Notes" shall include any New Exchange Senior Notes issued pursuant to the New Senior Notes Indenture in exchange for theretofore outstanding New Senior Notes, as contemplated by the Offering Memorandum, dated March 17, 2003, and the definition of New Exchange Senior Notes. "New Senior Notes Documents" shall mean the New Senior Notes, the New Senior Notes Indenture and all other documents executed and delivered with respect to the New Senior Notes or New Senior Notes Indenture, as in effect on the Initial Borrowing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. "New Senior Notes Indenture" shall mean the Indenture, dated as of March 28, 2003, 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 Initial Borrowing Date and as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. "Non-Defaulting Lender" shall mean each Lender other than a Defaulting Lender. "Non-Guarantor Subsidiaries" shall mean (i) on the Initial Borrowing Date, each Subsidiary of Holdings listed on Part A of Schedule XV and (ii) after the Initial Borrowing 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 Holdings 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 A Term Note, each Tranche B Term Note, each Multicurrency Facility Revolving Note, the Multicurrency Facility Swingline Note, each U.S. Borrower Dollar Facility Revolving Note, each Bermuda Borrower Dollar Facility Revolving Note, the U.S. Borrower Dollar Facility Swingline Note and the Bermuda Borrower Dollar Facility Swingline Note. "Notice of Borrowing" shall have the meaning provided in Section 1.03(a). -187- "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 31 West 52nd Street, New York, New York 10019 or such other office as the Administrative Agent may designate to Holdings and the Lenders from time to time. "Obligation Currency" shall have the meaning provided in Section 13.23(a). "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. "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. "Overnight Euro Rate" on any date shall mean the offered quotation to first-class banks in the Euro-Zone interbank market by the Swingline Lender for Euro overnight deposits of amounts in immediately available funds comparable to the outstanding principal amount of the Euro Denominated Swingline Loan of the Swingline Lender as of 11:00 A.M. (Brussels time) on such date; provided, that in the event the Administrative Agent has made any determination pursuant to Section 1.10(a)(i) in respect of Euro Denominated Swingline Loans, or in the circumstances described in clause (i) to the proviso to Section 1.10(b) in respect of Euro Denominated Swingline Loans, the Overnight Euro Rate determined pursuant to this definition shall instead be the rate determined by the Swingline Lender as the all-in-cost of funds for the Swingline Lender to fund such Euro Denominated Swingline Loan. "Payment Office" shall mean the office of the Administrative Agent located at 31 West 52nd Street, New York, New York 10019 or such other office as the Administrative Agent may hereafter designate in writing to Holdings 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(vi). "Permitted Acquisition" shall mean the acquisition by the U.S. Borrower or any of its Wholly-Owned Subsidiaries of assets constituting a business, division or product line of any Person, not already a Subsidiary of the U.S. Borrower or any of its Wholly-Owned Subsidiaries, or of 100% of the capital stock or other Equity Interests of any such Person, which Person shall, as a result of such acquisition, become a Wholly-Owned Subsidiary of the U.S. Borrower or such Wholly-Owned Subsidiary, provided that (A) the consideration paid by the U.S. Borrower or such Wholly-Owned Subsidiary consists solely of cash (including proceeds of Revolving Loans), the issuance of Holdings Common Stock, the issuance of Qualified Preferred Stock, the incurrence of Indebtedness otherwise permitted pursuant to Section 9.04 and the assumption/acquisition of any Permitted Acquired Debt relating to such business, division, -188- product line or Person which is permitted to remain outstanding in accordance with the requirements of Section 9.04, (B) in the case of the acquisition of 100% of the capital stock or other Equity Interests of any Acquired Entity or Business, such Acquired Entity or Business shall own no capital stock or other Equity Interests of any other Person unless either (x) the Acquired Entity or Business owns 100% of the capital stock or other Equity Interests of such other Person or (y) if the Acquired Entity or Business owns capital stock or Equity Interests in any other Person which is a Non-Wholly Owned Subsidiary of the Acquired Entity or Business, (1) the Acquired Entity or Business shall not have been created or established in contemplation of, or for purposes of, the respective Permitted Acquisition, (2) such Non-Wholly Owned Subsidiary of the Acquired Entity or Business shall have been a Non-Wholly Owned Subsidiary of the Acquired Entity or Business prior to the date of the respective Permitted Acquisition and not created or established in contemplation thereof and (3) the Acquired Entity or Business and/or its Wholly-Owned Subsidiaries own 80% of the consolidated assets of such Person and its Subsidiaries, (C) the Acquired Entity or Business shall be a Permitted Business and (D) all applicable requirements of Sections 8.11, 8.15 and 9.02 applicable to Permitted Acquisitions are satisfied. Notwithstanding anything to the contrary contained in the immediately preceding sentence, an acquisition which does not otherwise meet the requirements set forth above in the definition of "Permitted Acquisition" shall constitute a Permitted Acquisition if, and to the extent, the Required Lenders agree in writing that such acquisition shall constitute a Permitted Acquisition for purposes of this Agreement. "Permitted Business" shall mean any business which (i) is the same, similar, ancillary or reasonably related to the business in which Holdings or any of its Subsidiaries is engaged on the Effective Date or (ii) is conducted by an Acquired Entity or Business acquired pursuant to a Permitted Acquisition and which does not qualify as a "Permitted Business" pursuant to preceding clause (i), so long as (x) such business represents an immaterial portion of the businesses acquired pursuant to such Permitted Acquisition and (y) such business is sold or 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, (ii) mature no later than the date by which Loans are required to be repaid with the balance of the Net Sale Proceeds of such Contemplated Asset Sale as contemplated by Section 8.22 (and in no event later than December 31, 2005) and (iii) 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 -189- 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 Scheduled Existing Indebtedness, Permitted Acquired Debt, Indebtedness under the HQ Lease Agreements or any Indebtedness issued to so extend, refinance, renew, replace, substitute or refund any such Indebtedness, so long as (a) such Indebtedness has a weighted average life to maturity greater than or equal to the weighted average life to maturity of the Indebtedness being extended, refinanced, renewed, replaced or refunded, (b) such extension, refinancing, renewal, replacement or refunding does not (i) increase the amount of such Indebtedness outstanding immediately prior to such extension, refinancing, renewal, replacement or refunding or (ii) add guarantors, obligors or security from that which applied to such Indebtedness being extended, refinanced, renewed, replacement or refunding, (c) such Indebtedness has substantially the same (or, from the perspective of the Lenders, more favorable) subordination provisions, if any, as applied to the Indebtedness being extended, renewed, refinanced, replaced or refunded, and (d) all other terms of such extension, refinancing, renewal, replacement or refunding (including, without limitation, with respect to the amortization schedules, redemption provisions, maturities, covenants, defaults and remedies) are not less favorable in any material respect to the respective borrower than those previously existing with respect to the Indebtedness being extended, refinanced, renewed, replaced or refunded, provided, however, that any Intercompany Scheduled Existing Indebtedness (and subsequent extensions, refinancings, renewals, replacements and refundings thereof as provided above in this definition) may only be extended, refinanced, renewed, replaced or refunded as provided above in this definition if the Indebtedness so extended, refinanced, renewed, replaced or refunded has the same obligors(s) and obligee(s) as the Indebtedness being extended, refinanced, renewed, replaced or refunded. "Permitted Shareholder Litigation" shall mean shareholder litigation subject to a settlement agreement that has been preliminarily approved by the court with jurisdiction over such litigation, so long as (i) the amount and terms of such settlement are as set forth in that certain memorandum of understanding, dated as of December 18, 2002, (ii) the Agents are satisfied in their sole discretion with the size of any class which "opts-out" of such settlement and (iii) no material objections or appeals have been filed with respect to such settlement or its approval. "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) Holdings or a Subsidiary of Holdings or an ERISA Affiliate, and each such plan for the five year period immediately following the latest date on which Holdings, -190- or a Subsidiary of Holdings 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. "Post-Closing Period" shall have the meaning provided in Section 8.15(a). "Post-Closing Refinancing" shall mean, collectively, (i) the application by the trustee under the Existing 2003 Senior Notes Indenture of funds deposited in escrow with it on the Initial Borrowing Date to prepay in full all outstanding Existing 2003 Senior Notes (and accrued and unpaid interest thereon) in accordance with the requirements of the Existing 2003 Senior Notes Indenture and (ii) the application by the trustee under the Existing 2005 Senior Notes Indenture of funds deposited in escrow with it on the Initial Borrowing Date to prepay in full all outstanding Existing 2005 Senior Notes, all accrued but unpaid interest thereon (other than accrued but unpaid interest thereon to be paid by the U.S. Borrower within two Business Days following the Initial Borrowing Date) and a "make-whole" premium, all in accordance with the requirements of the Existing 2005 Senior Notes Indenture. "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 New Senior Notes Indenture (as in effect (and as each component definition used therein is in effect) on the date hereof, without giving effect to any termination thereof). "Pro Forma Basis" shall mean, in connection with any calculation of compliance with any financial covenant or financial term, the calculation thereof after giving effect on a pro forma basis to (x) any Permitted Acquisition or Significant Asset Sale then being consummated as well as any other Permitted Acquisition or Significant Asset Sale consummated after the first day of the relevant Test Period or Calculation Period, as the case may be, and on or prior to the date of the respective Permitted Acquisition or Significant Asset Sale, as the case may be, then being effected, (y) the incurrence or assumption of any Indebtedness that is incurred or assumed -191- in connection with, or to finance, one or more Permitted Acquisitions and (z) the permanent repayment of any Indebtedness in connection with any Significant Asset Sale; provided that, for purposes of calculations pursuant to Section 8.15, such calculations shall also give effect on a pro forma basis to (a) the incurrence of any Indebtedness (other than revolving Indebtedness, except to the extent same is incurred to refinance other outstanding Indebtedness or to finance a Permitted Acquisition) after the first day of the relevant Calculation Period as if such Indebtedness had been incurred (and the proceeds thereof applied) on the first day of the relevant Calculation Period and (b) the permanent repayment of any Indebtedness (other than revolving Indebtedness) after the first day of the relevant Calculation Period as if such Indebtedness had been retired or repaid on the first day of the relevant Calculation Period, with the following rules to apply in connection therewith: (i) for purposes of Section 8.15 only, all Indebtedness (x) (other than revolving Indebtedness, except to the extent same is incurred to refinance other outstanding Indebtedness or to finance Permitted Acquisitions) incurred or issued after the first day of the relevant Calculation Period (whether incurred to finance a Permitted Acquisition, to refinance Indebtedness or otherwise) shall be deemed to have been incurred or issued (and the proceeds thereof applied) on the first day of the respective Calculation Period and remain outstanding through the date of determination (and thereafter in the case of projections pursuant to Section 8.15) and (y) (other than revolving Indebtedness) permanently retired or redeemed after the first day of the relevant Calculation Period shall be deemed to have been retired or redeemed on the first day of the respective Calculation Period and remain retired through the date of determination (and thereafter in the case of projections pursuant to Section 8.15); (ii) for purposes of Section 8.15 only, all Indebtedness assumed to be outstanding pursuant to preceding clause (i) shall be deemed to have borne interest at (x) the rate applicable thereto, in the case of fixed rate indebtedness or (y) the rates which would have been applicable thereto during the respective period when same was deemed outstanding, in the case of floating rate Indebtedness (although interest expense with respect to any Indebtedness for periods while same was actually outstanding during the respective period shall be calculated using the actual rates applicable thereto while same was actually outstanding); provided that all Indebtedness (whether actually outstanding or deemed outstanding) bearing interest at a floating rate of interest shall be tested on the basis of the rates applicable at the time the determination is made pursuant to said provisions; (iii) for determinations of the Leverage Ratio for purposes of determining the Applicable Margins, Consolidated Debt shall be the actual amount thereof as of the last day of the respective Calculation Period or Test Period, as the case may be; provided that, (x) to the extent any Permitted Acquisition is consummated after the last day of the respective Calculation Period or Test Period and on or prior to the date of delivery of the Quarterly Pricing Certificate referenced in the definition of "Applicable Margin", all Indebtedness incurred or assumed in connection with one or more Permitted Acquisitions consummated after the last day of the respective Calculation Period or Test Period, as the case may be, shall be added to Consolidated Debt and shall be deemed to have been outstanding on the last day of the respective Calculation Period or Test Period, as the case -192- may be, and (y) to the extent any Significant Asset Sale is consummated after the last day of the respective Calculation Period or Test Period and on or prior to the date of delivery of the Quarterly Pricing Certificate referenced in the definition of "Applicable Margin", all Indebtedness permanently repaid or retired in connection with one or more Significant Asset Sales consummated after the last day of the respective Calculation Period or Test Period, as the case may be, shall be deducted from Consolidated Debt and shall be deemed not to have been outstanding on the last day of the respective Calculation Period or Test Period, as the case may be; (iv) in making any determination of Consolidated EBITDA on a Pro Forma Basis, pro forma effect shall be given to any Permitted Acquisition or Significant Asset Sale effected during the respective Calculation Period or Test Period (or thereafter to the extent provided in the definition of Applicable Margin, for determinations of the Applicable Margins, or as provided in Section 8.15, for determinations pursuant to Section 8.15 only) as if same had occurred on the first day of the respective Calculation Period or Test Period, as the case may be, taking into account, in the case of any Permitted Acquisition, factually supportable and identifiable cost savings and expenses which would otherwise be accounted for as an adjustment pursuant to Article 11 of Regulation S-X under the Securities Act, as if such cost savings or expenses were realized on the first day of the respective period. "Pro Forma Financial Statements" shall have the meaning provided in Section 5.21(a). "Projections" shall have the meaning provided in Section 5.21(b). "Property" of a Person means any and all property, whether real, personal, tangible, intangible or mixed, of such Person, or other assets owned, leased, or operated by such Person. "Qualified Jurisdictions" shall mean and include the United States, Bermuda and each other jurisdiction identified on Schedule XX hereto, in each case including any states, provinces or other similar local units therein. Furthermore, from time to time after the Initial Borrowing Date, Holdings may request (by written notice to, and following consultation with, the Administrative Agent) that one or more additional jurisdictions be added to the list of Qualified Jurisdictions. In such event, such jurisdictions shall be added to (and thereafter form part of) the list of Qualified Jurisdictions so long as, in each case, the respective jurisdiction to be added is a jurisdiction in which the U.S. Borrower and/or any of its Subsidiaries conducts business on the Effective Date or is otherwise reasonably satisfactory to the Administrative Agent and so long as Holdings 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 (unlimited in amount and otherwise containing provisions reasonably consistent with the provisions of the Foreign Subsidiaries Guaranty executed and delivered on the Initial Borrowing Date and applicable to a Qualified Non-U.S. Obligor on such date), the Intercompany Subordination Agreement and such Security Documents as may be satisfactory to the Collateral Agent (generally consistent with the Security Documents -193- executed and delivered by Qualified Non-U.S. Obligors (determined without regard to the proviso to the definition thereof contained herein) on the Initial Borrowing Date) and that, in accordance with the laws of the respective jurisdiction, 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 (in each case subject to such customary exceptions (not inconsistent with the requirements set forth above) as are satisfactory to the Administrative Agent). The parties hereto further agree that, in the discretion of the Administrative Agent, as a condition to the addition of any jurisdiction to the list of Qualified Jurisdictions, the Administrative Agent may (but shall not be required to) request the consent of the Required Lenders to such addition and, in such event, the Administrative Agent shall be entitled to wait for such consent before adding the respective jurisdiction to the list of Qualified Jurisdictions. "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 Holdings 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 and 8.11 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 8.19(c), 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 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 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) during the 120 day period following the Initial Borrowing Date, any Foreign Subsidiary of the Bermuda Partnership organized under the laws of Argentina, the Bahamas, Barbados, Belgium, Brazil, British Virgin Islands, Canary Islands, China, Greece, Guatemala, Malta, Mauritius, Mexico, Netherlands, Panama, Peru, Singapore, South Africa, South Korea, Sweden, the United Kingdom and Venezuela 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 (I) during such period each such Foreign Subsidiary is making reasonable efforts to cause to be taken all such actions required to be taken pursuant to the definition of Qualified Jurisdiction to cause such Foreign Subsidiary to become a "Qualified Non-U.S. Obligor" and (II) such Foreign Subsidiary continues to operate during such period in the ordinary course of business and consistent with its past practices, (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 -194- than Sections 8.19(c) and 9.01(c) for which it is understood such Persons shall not constitute "Qualified Non-U.S. Obligors"), (v) during the 180 day period following the Initial Borrowing Date, each Foreign Subsidiary of the Bermuda Partnership referred to in preceding clause (iii) of this proviso shall be deemed to be a Qualified Non-U.S. Obligor for purposes of Sections 8.19(c) and 9.01(c) (and only said Section), so long as at all times during such period such Foreign Subsidiary complies with the requirements described in subclause (II) appearing in preceding clause (iii) of this proviso, (vi) each Foreign Subsidiary of the U.S. Borrower which is not required to execute and deliver Security Documents on the Initial Borrowing Date as a result of a post-closing extension of such requirement granted to such Foreign Subsidiary pursuant to Section 13.19 shall be deemed to be a Qualified Non-U.S. Obligor for all purposes of this Agreement during the period from the Initial Borrowing Date through the date of the required execution and delivery of such Security Documents pursuant to Section 13.19, so long as such Foreign Subsidiary otherwise meets the requirements of a "Qualified Non-U.S. Obligor" set forth above and (vii) any Qualified Non-U.S. Obligor (including any deemed as such pursuant to preceding clauses (i), (ii), (iii), (iv), (v) and (vi)) shall cease to constitute same at such time, if any, as such Person ceases to be a Wholly-Owned Subsidiary of Holdings. "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 Holdings, the express terms of which shall provide that dividends thereon shall not be required to be paid at any time (and to the extent) that such payment would be prohibited by the terms of this Agreement or any other agreement of Holdings or any of its Subsidiaries relating to outstanding indebtedness and which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event (including any change of control event), cannot mature (excluding any maturity as the result of an optional redemption by the issuer thereof) and is not mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, and is not redeemable, or required to be repurchased, at the sole option of the holder thereof (including, without limitation, upon the occurrence of an change of control event), in whole or in part, on or prior to 3 months following the maturity date of the Existing 2013 Senior Notes. "Qualified Trust" shall mean the David H. Murdock Living Trust, dated May 28, 1986, as amended, or another trust established by Mr. Murdock to hold and control the capital stock of Holdings and the remainder of his estate in the event of his death, so long as any such trust described above (i) is at all times controlled by David H. Murdock or by a majority of experienced business persons and is not controlled by members of Mr. Murdock's family, (ii) holds all or substantially all of the assets of Mr. Murdock and (iii) assumes all of Mr. Murdock's obligations under (or is otherwise bound as the legal successor to Mr. Murdock under) the Capital Call Agreement. "Qualified U.S. Obligors" shall mean and include Holdings and each other U.S. Credit Party which is a Wholly-Owned Subsidiary of Holdings, provided that any Qualified U.S. Obligor that is (or was) a Subsidiary of Holdings 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 Holdings. -195- "Quarterly Payment Date" shall mean the last Business Day of each March, June, September and December. "Quarterly Pricing Certificate" shall have the meaning provided in the definition of Applicable Margin. "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 Holdings 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 Holdings or any of its Subsidiaries, (ii) by reason of any condemnation, taking, seizing or similar event with respect to any properties or assets of Holdings or any of its Subsidiaries and (iii) under any policy of insurance required to be maintained under Section 8.03. "Refinancing" shall mean and include the Initial Refinancing and the Post-Closing Refinancing. "Refinancing Documents" shall mean all of the agreements, documents and instruments executed or delivered in connection with the Refinancing. "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. "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. "Replaced Lender" shall have the meaning provided in Section 1.13. "Replacement Lender" shall have the meaning provided in Section 1.13. -196- "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(j). "Required Lenders" shall mean Non-Defaulting Lenders, the sum of whose outstanding principal of Term Loans (or, if prior to the occurrence of the Credit Events on the Initial Borrowing Date, whose Tranche A Term Loan Commitments and Tranche B Term Loan Commitments) and Revolving Loan Commitments (or after the termination thereof, outstanding Individual RL Facility Exposures) as of any date of determination represent greater than 50% of the sum of all outstanding principal of Term Loans (or, if prior to the occurrence of the Credit Events on the Initial Borrowing Date, the sum of all Tranche A Term Loan Commitments and Tranche B Term Loan Commitments) of Non-Defaulting Lenders at such time and the sum of all Revolving Loan Commitments of all Non-Defaulting Lenders at such time (or, after the termination thereof, the sum of the then total Individual RL Facility Exposures of all Non-Defaulting Lenders at such time). "Restricted Subsidiary" of any Person shall mean any Subsidiary (as defined in the New Senior Notes Indenture as in effect on the Initial Borrowing Date) 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 (i) on each Excess Cash Payment Date so long as any repayment required pursuant to Section 4.02(g) has been made, by an amount equal to Excess Cash Flow for the immediately preceding Excess Cash Flow Payment Period multiplied by a percentage equal to 100% minus the Applicable Prepayment Percentage, and (B) reduced (i) on each Excess Cash Payment Date where Excess Cash Flow for the immediately preceding Excess Cash Flow Payment Period is a negative number, by such amount, and (ii) at the time of any voluntary prepayment of Term Loans pursuant to Section 4.01 made (and notified to the Administrative Agent as being made) to reduce the asset sale requirements pursuant to clause (iii)(I) of the second proviso appearing in Section 8.22, by the principal amount of the Term Loans so repaid (it being understood that the Retained Excess Cash Flow Amount may be reduced to an amount below zero after giving effect to the reductions enumerated in clause (B) above). "Returns" shall have the meaning provided in Section 7.20. "Revolving Loan Commitment" shall mean, for each RL Lender, its Multicurrency Facility Revolving Loan Commitment (if any) and its Dollar Facility Revolving Loan Commitment (if any). "Revolving Loan Maturity Date" shall mean March 28, 2008. "RL Commitment Commission" shall have the meaning provided in Section 3.01(a). -197- "RL Lender" shall mean each Multicurrency Facility RL Lender and each Dollar Facility RL Lender. "RL Percentage" of any RL Lender at any time shall be that percentage which is equal to a fraction (expressed as a percentage) the numerator of which is the Revolving Loan Commitment of such RL Lender at such time and the denominator of which is the Total Revolving Loan Commitment at such time, provided that if any such determination is to be made after the Total Revolving Loan Commitment (and the related Revolving Loan Commitments of the RL Lenders) has terminated, the determination of such percentages shall be made immediately before giving effect to such termination. "S&P" shall mean Standard & Poor's Ratings Services, a division of McGraw Hill, Inc. "Saba" shall mean Saba Trading AB, a Swedish company. "Saba Share Option Agreement" shall have the meaning provided in Section 9.05(xiv). "Sale-Leaseback Transaction" shall mean the sale and leaseback of the corporate aircraft named "Global Express". "Sale-Leaseback Transaction Documents" shall mean all documents and agreements delivered in connection with the Sale-Leaseback Transaction, 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. "Scheduled Existing Indebtedness" shall mean Third Party Scheduled Existing Indebtedness and Intercompany Scheduled Existing Indebtedness. "Scheduled Repayment" shall mean any Tranche A Term Loan Scheduled Repayment and/or any Tranche B Term Loan Scheduled Repayment, as applicable. "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. "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. "Securities Act" shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. -198- "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 Document" 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 Officer" shall mean (i) senior executive management of Holdings and the U.S. Borrower, (ii) the general counsel of Holdings and the U.S. Borrower and (iii) the division presidents of Holdings and its Subsidiaries. "SG" shall mean Societe Generale, in its individual capacity, and any successor corporation thereto by merger, consolidation or otherwise. "Shareholder Subordinated Note" shall mean an unsecured junior subordinated note issued by Holdings (and not guaranteed or supported in any way by either Borrower or any of their respective Subsidiaries) in the form of Exhibit M, as the same may be amended, modified and/or supplemented from time to time in accordance with the terms hereof and thereof. "Shareholders' Agreements" shall have the meaning provided in Section 5.19. "Sharing Event" shall mean (i) the occurrence of any Event of Default with respect to any Credit Agreement Party pursuant to Section 10.05, (ii) the declaration of the termination of any Revolving 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. "Special Colombian Put Notes" shall have the meaning provided in Section 8.24. "Special Reserve Account" shall have the meaning provided in Section 1.14(d). -199- "Specified Default" shall mean any Default under either of Sections 10.01 or 10.05. "Standby Letter of Credit" shall have the meaning provided in Section 2A.01(a). "Start Date" shall have the meaning provided in the definition of Applicable Margin. "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, except as such term is used in Section 2A.02 and except as provided in the definition of "Euro L/C Stated Amount", the "Stated Amount" of each Euro Denominated Letter of Credit shall be, on any date of calculation, the Dollar Equivalent of the maximum amount available to be drawn in Euros thereunder (determined without regard to whether any conditions to drawing could then be met but after giving effect to all previous drawings made thereunder). "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 Sections 8.11, 8.12 and/or 9.17. "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 "66-2/3%." "Swingline Expiry Date" shall mean the date that is five Business Days prior to the Revolving Loan Maturity Date. "Swingline Lender" shall mean DBAG, or any Person serving as a successor Administrative Agent hereunder, in its capacity as a lender of Swingline Loans. -200- "Swingline Loans" shall have the meaning provided in Section 1.01(f). "Syndication Date" shall mean the earlier of (i) the 90th day following the Initial Borrowing Date and (ii) the date upon which the Agents determine (and notify Holdings and the Lenders) that the primary syndication (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 in accordance with 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; provided that for purposes of this Agreement, the term "Synthetic Lease" shall not include the leases in existence on the Initial Borrowing Date with respect to the vessels named "Dole Chile" and "Dole Colombia". "Tax Allocation Agreements" shall have the meaning provided in Section 5.19. "Taxes" shall have the meaning provided in Section 4.04(a). "Term Loans" shall mean and include Tranche A Term Loans and Tranche B Term Loans. "Test Period" shall mean (i) for purposes of any determination of compliance with Sections 9.08, 9.09 or 9.11 prior to the first anniversary of the Initial Borrowing Date, the period commencing on the first day of the 2nd Fiscal Quarter of Fiscal Year 2003 and ending on the last day of the Fiscal Quarter then last ended (taken as one accounting period) and (ii) for all other purposes, each period of four consecutive Fiscal Quarters then last ended, in each case taken as one accounting period; provided that in the case of any determination of the Leverage Ratio or the Bank Debt Leverage Ratio pursuant to this Agreement prior to the first anniversary of the Initial Borrowing Date, such period shall be a one-year period ending on the last day of the Fiscal Quarter last ended, with any calculations of Consolidated EBITDA used in calculating the Leverage Ratio or the Bank Debt Leverage Ratio to be made on a pro forma basis in accordance with, and to the extent provided in, the immediately succeeding sentence. To the extent the respective Test Period (i) includes the 2nd Fiscal Quarter of Fiscal Year 2002, Consolidated EBITDA for such fiscal quarter shall be deemed to be $139,500,000, (ii) includes the 3rd Fiscal Quarter of Fiscal Year 2002, Consolidated EBITDA for such fiscal quarter shall be deemed to be $91,200,000, (iii) includes the 4th Fiscal Quarter of Fiscal Year 2002, Consolidated EBITDA for such fiscal quarter shall be deemed to be $70,400,000 and (iv) includes the 1st Fiscal Quarter of Fiscal Year 2003, Consolidated EBITDA shall be deemed to be $101,600,000 (provided that once the financial results for such Fiscal Quarter are made available and reported as provided in Section 8.01(b), Consolidated EBITDA for such Fiscal Quarter shall be recalculated in accordance with the requirements of the definition of "Consolidated EBITDA" and, thereupon, be restated for purposes of this clause (iv)); provided, however, that any additional adjustments required by the definition of Pro Forma Basis for occurrences after the Initial Borrowing Date shall also be made. -201- "Third Party Scheduled Existing Indebtedness" shall have the meaning provided in Section 7.21. "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. "Total Commitment" shall mean, at any time, the sum of the Total Tranche A Term Loan Commitment, the Total Tranche B Term Loan Commitment and the Total Revolving Loan Commitment. "Total Dollar Facility Revolving Loan Commitment" shall mean, at any time, the sum of the Dollar Facility Revolving Loan Commitments of each of the Lenders with such a Commitment at such time. "Total Multicurrency Facility Revolving Loan Commitment" shall mean, at any time, the sum of the Multicurrency Facility Revolving Loan Commitments of each of the Lenders with such a Commitment at such time. "Total Revolving Loan Commitment" shall mean, at any time, the sum of the Total Dollar Facility Revolving Loan Commitment and the Total Multicurrency Facility Revolving Loan Commitment, in each case in effect at such time. "Total Tranche A Term Loan Commitment" shall mean, at any time, the sum of the Tranche A Term Loan Commitments of each of the Lenders with such a Commitment at such time. "Total Tranche B Term Loan Commitment" shall mean, at any time, the sum of the Tranche B Term Loan Commitments of each of the Lenders with such a Commitment at such time. "Total Unutilized Dollar Facility Revolving Loan Commitment" shall mean, at any time, an amount equal to the remainder of (x) the Total Dollar Facility Revolving Loan Commitment as in effect at such time less (y) the aggregate principal amount of all Dollar Facility Revolving Loans outstanding at such time less (z) the aggregate amount of all Dollar Facility Letter of Credit Outstandings at such time. "Total Unutilized Multicurrency Facility Revolving Loan Commitment" shall mean, at any time, an amount equal to the remainder of (x) the Total Multicurrency Facility Revolving Loan Commitment as in effect at such time less (y) the Aggregate Multicurrency Facility RL Exposure at such time; provided that for purposes of this definition, "Aggregate Multicurrency Facility RL Exposure" shall be determined as provided in the definition thereof but for such purposes excluding the obligations described in clause (iii) of said definition. "Total Unutilized Revolving Loan Commitment" shall mean, at any time, an amount equal to the remainder of (x) the Total Revolving Loan Commitment as in effect at such -202- time less (y) the sum of the Aggregate Multicurrency Facility RL Exposure at such time and the Aggregate Dollar Facility RL 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 hereunder, with there being eight separate Tranches (i.e., Tranche A Term Loans, Tranche B Term Loans, Multicurrency Facility Revolving Loans, Multicurrency Facility Swingline Loans, U.S. Borrower Dollar Facility Revolving Loans, Bermuda Borrower Dollar Facility Revolving Loans, U.S. Borrower Dollar Facility Swingline Loans and Bermuda Borrower Dollar Facility Swingline Loans); provided that for purposes of the definition of "Supermajority Lenders", "Majority Lenders" and Section 13.12(a), there shall be deemed to be four separate Tranches (i.e., Tranche A Term Loans, Tranche B Term Loans, Multicurrency Facility Revolving Loans and Dollar Facility Revolving Loans). "Tranche A Term Loan" shall have the meaning provided in Section 1.01(a). "Tranche A 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 A Term Loan Commitment", as the same may be terminated pursuant to Sections 3.03 and/or 10. "Tranche A Term Loan Maturity Date" shall mean March 28, 2008. "Tranche A Term Loan Scheduled Repayment" shall have the meaning provided in Section 4.02(b)(i). "Tranche A Term Note" shall have the meaning provided in Section 1.05(a). "Tranche B Term Loan" shall mean have the meaning provided in Section 1.01(b). "Tranche B 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 Term Loan Commitment", as the same may be terminated pursuant to Sections 3.03 and/or 10. "Tranche B Term Loan Maturity Date" shall mean September 28, 2008. "Tranche B Term Loan Scheduled Repayment" shall have the meaning provided in Section 4.02(b)(ii). "Tranche B Term Note" shall have the meaning provided in Section 1.05(a). "Transaction" shall mean, collectively, (i) the consummation of the Acquisition and the Foreign Asset Transfer, (ii) the consummation of the Common Equity Financing, (iii) the issuance of the New Senior Notes, (iv) the execution and delivery of the Existing Senior Notes Indenture Supplement as contemplated by Section 5.10, (v) the consummation of the -203- Refinancing, (vi) the consummation of the Sale-Leaseback Transaction, (vii) the consummation of the Intercompany Distribution Transactions, (viii) the entering into of the Credit Documents and the incurrence of all Loans and the issuance of all Letters of Credit and Bank Guaranties on the Initial Borrowing Date, and (ix) the payment of fees and expenses in connection with the foregoing. "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, a Eurodollar Loan, a Euro Denominated Revolving Loan or a Euro Denominated Swingline 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. "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 Holdings and its Subsidiaries other than, so long as Saba remains a Non-Wholly Owned Subsidiary, cash and Cash Equivalents owned or held by Saba and its Subsidiaries. "Unrestricted Subsidiary" of any Person shall mean (i) at any time prior to the repayment in full of the Existing 2009 Senior Notes and the Existing 2013 Senior Notes, any Subsidiary of such Person that is not a Restricted Subsidiary and (ii) thereafter, any Subsidiary of such Person. "Unutilized Dollar Facility Revolving Loan Commitment" with respect to any Dollar Facility RL Lender, at any time, shall mean such Dollar Facility RL Lender's Dollar Facility Revolving Loan Commitment at such time, if any, less the sum of (i) the aggregate outstanding principal amount of Dollar Facility Revolving Loans made by such Dollar Facility RL Lender and then outstanding and (ii) the sum of such Dollar Facility RL Lender's L/C Participation Percentage of the Stated Amount of each Dollar Facility Letter of Credit and any Unpaid Drawings relating thereto. "Unutilized Multicurrency Facility Revolving Loan Commitment" with respect to any Multicurrency Facility RL Lender, at any time, shall mean such Multicurrency Facility RL Lender's Multicurrency Facility Revolving Loan Commitment at such time, if any, less the sum -204- of (i) the aggregate outstanding principal amount of Multicurrency Facility Revolving Loans (taking the Dollar Equivalent of any such Loans denominated in Euros) made by such Multicurrency Facility RL Lender and then outstanding, (ii) the sum of such Multicurrency Facility RL Lender's L/C Participation Percentage of the Stated Amount of each Multicurrency Facility Letter of Credit and any Unpaid Drawings (taking the Dollar Equivalent of any amounts expressed in Euros) relating thereto and (iii) the sum of such Multicurrency Facility RL Lender's B/G Participation Percentage of the Face Amount of each Bank Guaranty and any Unreimbursed Payment (taking the Dollar Equivalent of any amounts expressed in Euros) relating thereto. "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 Dollar Facility Letter of Credit" shall mean each Dollar Facility Letter of Credit (which must be denominated in Dollars) issued for the account of the U.S. Borrower pursuant to Section 2A.01. "U.S. Borrower Dollar Facility Revolving Loan" shall have the meaning provided in Section 1.01(d). "U.S. Borrower Dollar Facility Revolving Note" shall have the meaning provided in Section 1.05(a). "U.S. Borrower Dollar Facility Swingline Loan" shall have the meaning provided in Section 1.01(f). "U.S. Borrower Dollar Facility Swingline Note" shall have the meaning provided in Section 1.05(a) "U.S. Borrower Guaranteed Obligations" shall mean (i) the principal and interest on each Tranche B Term Note, each Multicurrency Facility Revolving Note, the Multicurrency Facility Swingline Note, each Bermuda Borrower Dollar Facility Revolving Note and each Bermuda Borrower Dollar Facility Swingline Note issued by the Bermuda Borrower to each Lender, and each Tranche B Term Loan, each Multicurrency Facility Revolving Loan, each Multicurrency Facility Swingline Loan, each Bermuda Borrower Dollar Facility Revolving Loan and each Bermuda Borrower Dollar Facility Swingline 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 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 (ii) all obligations (including obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would -205- become due) and liabilities of the Bermuda Borrower or any other Subsidiary of the U.S. 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 Lender or any affiliate thereof (even if such Lender subsequently ceases to be a Lender under this Agreement for any reason) so long as such Lender or affiliate 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. "U.S. Borrower Guaranteed Party" shall mean 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. "U.S. Borrower's Guaranty" shall mean the guaranty of the U.S. Borrower pursuant to Section 15. "U.S. Credit Party" shall mean Holdings, the U.S. Borrower and each U.S. Subsidiary Guarantor. "U.S. Dole Group" shall mean Holdings, 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; provided that determinations in accordance with U.S. GAAP for purposes of Applicable Margins and Sections 4.02, 8.15 and 9, including defined terms as used therein, and for all purposes of determining the Leverage Ratio and the Bank Debt Leverage Ratio, are subject (to the extent provided therein) to Section 13.07(a). "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 have the meaning provided in Section 5.15(a). "U.S. Pledge Agreement Collateral" shall mean all of the "Collateral" as defined in the U.S. Pledge Agreement. "U.S. Security Agreement" shall have the meaning provided in Section 5.16. "U.S. Security Documents" shall mean and include the U.S. Security Agreement, the U.S. Pledge Agreement, each Mortgage covering a U.S. Mortgage Property and each -206- Additional Security Document covering assets of a U.S. Credit Party situated in the United States. "U.S. Subsidiaries Guaranty" shall have the meaning provided in Section 5.14(a) and shall include any counterpart thereof and any other substantially identical guaranty executed and delivered by any Subsidiary of the U.S. Borrower pursuant to Section 8.11, 8.12 or 9.17. "U.S. Subsidiary Guarantor" shall mean (i) each Wholly-Owned Domestic Subsidiary of Holdings as of the Initial Borrowing Date (other than (x) the U.S. Borrower and (y) the Excluded Domestic Subsidiary) and (ii) each other Wholly-Owned Domestic Subsidiary of the U.S. Borrower created, established or acquired after the Initial Borrowing 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. "Waivable Repayment" shall have the meaning provided in Section 4.02(k). "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, the term "Administrative Agent" shall mean DBAG in its capacities as Administrative Agent and as Collateral Agent hereunder and pursuant to the Security Documents), (y) Scotia Capital and BAS as Co-Syndication Agents for such Lender, and (z) Fleet and SG as Co-Documentation Agents for such Lender, each to act as specified herein and in the other Credit Documents, and each such -207- Lender hereby irrevocably authorizes the Administrative Agent, each Co-Syndication Agents 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, such Co-Syndication Agent or such Co-Documentation Agent, 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 Co-Syndication Agents, the Co-Documentation Agents and the Lenders, and neither Holdings 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, each Co-Syndication Agent and each Co-Documentation Agent shall act solely as agent for the Lenders, and none of the Administrative Agent, the Co-Syndication Agents or the Co-Documentation Agents assumes (and shall not be deemed to have assumed) any obligation or relationship of agency or trust with or for Holdings 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 -208- (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, judgments, suits, costs, expenses and disbursements (including reasonable attorneys' and consultants' fees and disbursements) incurred by, imposed on or assessed against any of them as a result of, or arising out of, or in any way related to, or by reason of, 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, each of the Joint Lead Arrangers is named as such for recognition purposes only, and in their respective capacities as such shall have no powers, duties, responsibilities or liabilities with respect to this Agreement or the other Credit Documents or the transactions contemplated hereby and thereby; it being understood and agreed that the Joint Lead Arrangers 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, none of the Joint Lead Arrangers shall, solely by reason of this Agreement or any other Credit Documents, have any fiduciary relationship in respect of any Lender or any other Person. 12.03 Certain Rights of the Agents. The Agents shall have the right 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 Holdings or either -209- 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. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders; provided that, unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders (as determined by the Administrative Agent in its sole discretion). 12.06 Nonreliance on Agents and Other Lenders. Independently and without reliance upon any Agent, each 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 Holdings and its Subsidiaries in connection with the making and the continuance of the Loans and the taking or not taking of any action in connection herewith and, except as expressly provided in this Agreement, no Agent shall have any duty or responsibility, either initially or on a continuing basis, to provide any Lender or the holder of any Note with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter. No Agent or their respective affiliates nor any of their respective officers, directors, agents or employees shall be responsible to any Lender 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 Holdings 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 or 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 Credit Agreement Parties, 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), 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, 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 -210- 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. 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 any Credit Party or any Affiliate thereof) as if they were not performing the duties specified herein, and may accept fees and other consideration from any Credit Party or any Affiliate of any Credit Party for services in connection with this Agreement and otherwise without having to account for the same to the Lenders. 12.09 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 Business Days' prior written notice to the Lenders and, unless a Default or an Event of Default under Section 10.05 then exists, Holdings. Any such resignation by an Agent hereunder shall also constitute its resignation (if applicable) as an Issuing Lender, Bank Guaranty Issuer and Swingline Lender, in which case the resigning Agent (x) shall not be required to issue any further Letters of Credit or Bank Guaranties or make any additional Swingline Loans hereunder and (y) shall maintain all of its rights as Issuing Lender, Bank Guarantor Issuer or Swingline Lender, as the case may be, with respect to any Letter of Credit or Bank Guaranty issued by it, or Swingline Loans made by it, prior to the date of such resignation. Such resignation shall take effect upon the appointment of a successor Administrative Agent pursuant to clauses (b) and (c) below or as otherwise provided below. (b) Upon any such notice of resignation by the Administrative Agent, the Required Lenders shall appoint a successor Administrative Agent hereunder and/or under the other Credit Documents who shall be a commercial bank or trust company acceptable to -211- Holdings, which acceptance shall not be unreasonably withheld or delayed (provided that Holdings' 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 Business Day period, the Administrative Agent, with the consent of Holdings (which consent shall not be unreasonably withheld or delayed, provided that Holdings' 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 Business Day after the date such notice of resignation was given by the Administrative Agent, the Administrative Agent's resignation shall become effective and the Required Lenders shall thereafter perform all the duties of the Administrative Agent hereunder and/or under any other Credit Document until such time, if any, as the Lenders appoint a successor Administrative Agent as provided above. (e) Either Co-Syndication Agent may resign from the performance of all its functions and duties hereunder and/or under the other Credit Documents at any time by giving five Business Days' prior written notice to the Lenders. Such resignation shall take effect at the end of such five Business Day period. (f) Either Co-Documentation Agent may resign from the performance of all its functions and duties hereunder and/or under the other Credit Documents at any time by giving five Business Days' prior written notice to the Lenders. Such resignation shall take effect at the end of such five Business Day period. (g) 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 for the benefit of the Lenders and the other Secured Creditors. 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, and the exercise by the Required Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. The Collateral Agent is hereby authorized on behalf of all of the Lenders, without the necessity of any notice to or further consent from any Lender, from time to time prior to an Event of Default, to take any action with respect to any Collateral or Security Documents which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to the Security Documents. -212- (b) The Lenders hereby authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon termination of the Commitments and payment and satisfaction 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 Holdings 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) or (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. (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 Agreement Party or any of its Subsidiaries 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). 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 any Credit Agreement Party, any Subsidiary, the Required Lenders, any Lender or any other Person under or in connection with this Agreement or any other Credit Document except (i) as specifically provided in this Agreement or any other Credit Document and (ii) as specifically requested from time to time in writing by any Lender with respect to a specific document, instrument, notice or other written communication received by and in the possession of the Administrative Agent at the time of receipt of such request and then only in accordance with such specific request. 12.13 Special Appointment of Collateral Agent. (a) Without prejudice to the generality of Clause 12.11 (Collateral Matters): (i) Each Lender hereby appoints, on the terms hereof, and each Hedging Creditor (as defined in the U.S. Security Agreement) by their acceptance of the benefits of the German Security (as defined below) and by notice in writing to the Collateral Agent to that effect hereby appoints, on the terms hereof, the Collateral Agent as trustee (Treuhaender), agent and administrator for the purpose of holding on trust (Treuhand) accepting, administering and enforcing the German Security for and on behalf of the Lenders and the other Secured Creditors. -213- (ii) The Collateral Agent accepts its appointment as a trustee (Treuhaender), agent and administrator of the German Security on the terms and subject to the conditions set out in this Agreement. (iii) The Secured Creditors 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; and (b) The Collateral Agent shall: (i) hold and administer any German Security which is security assigned or otherwise transferred (Sicherungsubereignung/Sicherungsabtretung) under German law under a non-accessory security right (nicht akzessorische Sicherheit) to it as a trustee (Treuhaender) for the benefit of the Secured Creditors; and (ii) administer any German Security which is pledged under German law (Verpfaendung) or otherwise transferred in accordance with German law to any of the Secured Creditors under an accessory security right (akzessorische Sicherheit), where "German Security" means the assets the subject of a security document which is governed by German Law. Each Secured Creditor hereby authorizes the Collateral Agent to accept, as its representative (Stellvertreter), any German Security created in favor of such Secured Creditor. (c) Furthermore, each Secured Creditor hereby authorizes (bevollmaechtigt) 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 as 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, amend and/or execute new and different documents securing the German Security. The Collateral Agent is released from the restrictions arising under Clause 181 of the German Civil Code (Buergerliches Gesetzbuch) (restrictions on self-dealing). 12.14 Special Provisions Relating to Canadian Security Documents. 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 shall, 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, be the holder of an irrevocable power of attorney (fonde 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 favour 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 to be executed by Dole Canada (the "Canadian Security Agreement")) hereby irrevocably constitutes, to the extent necessary, the Collateral Agent as the holder of an irrevocable power of attorney (fonde de pouvoir) (within the meaning of Article 2692 of the Civil Code of Quebec) in order to hold security granted by -214- 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 (fonde 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. SECTION 13. Miscellaneous. 13.01 Payment of Expenses, etc. The Credit Agreement Parties 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 and the Collateral Agent (including, without limitation, the reasonable fees and disbursements of White & Case LLP and local and foreign counsel) in connection with the negotiation, preparation, execution and delivery 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 Credit Agreement Parties 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 White & Case LLP, Conyers Dill & Pearman, a single law firm engaged by any Agent (other than DBAB) to review credit documentation (to the extent the fees and expenses of such single law firm do not exceed $50,000) and such other local and foreign counsel as may be engaged by the Administrative Agent to address issues arising in connection with the Transaction 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 and each of the Lenders in connection with the enforcement of the Credit Documents and the documents and instruments referred to therein (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 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 and each of the Lenders); (iii) pay and hold each of the Agents, the Collateral Agent, each Issuing Lender, each Bank Guaranty Issuer 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 and each of -215- 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 or such Lender) to pay such taxes; and (iv) indemnify each Agent, the Collateral Agent, each Issuing Lender, each Bank Guaranty Issuer and each Lender, their respective officers, directors, employees, representatives, trustees and agents 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 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, 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 or Bank Guaranty or the proceeds of any Loans hereunder or the Transaction or the consummation of 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 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), 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 or any Lender set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, the Credit Agreement Parties 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 Holdings or any of its -216- 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, such Bank Guaranty Issuer, such Lender or the Collateral Agent (including, without limitation, by branches and agencies of such Agent, such Issuing Lender, such Bank Guaranty Issuer, such Lender or the Collateral Agent wherever located) to or for the credit or the account of Holdings or any of its Subsidiaries against and on account of the Obligations and liabilities of Holdings 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 any Swingline Loans, 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, or Swingline Loans made, 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 is 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 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, -217- telex, facsimile or cable communication) and mailed, telegraphed, telexed, telecopied, cabled or delivered: if to any Credit Agreement Party, 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 Credit Agreement Party 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 Holdings 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 Holdings and its Subsidiaries to confirm in writing any telephonic notice permitted to be given hereunder, any Agent, the Swingline Lender (in the case of a Borrowing of Swingline Loans), 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, the Swingline Lender, such Issuing Lender or such Bank Guaranty Issuer in good faith to be from an Authorized Officer. In each such case, Holdings and each of the Borrowers hereby waive the right to dispute such Agent's, the Swingline Lender'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 Credit Agreement Party 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 shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) extend the final scheduled maturity of any Loan, Note, or Letter of Credit or Bank Guaranty (unless such Letter of Credit or Bank Guaranty is not extended beyond the Revolving Loan Maturity Date) in which such participant is participating, or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, 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 Credit Agreement Party of any of its -218- rights and obligations under this Agreement, (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 or (iv) amend, modify or waive any provision of Section 8.22 or the Capital Call Agreement in any manner adverse to the interest of any Lender. 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. (b) Notwithstanding the foregoing, any Lender (or any Lender together with one or more other Lenders) may (x) assign all or a portion of its Revolving Loan Commitment (and related outstanding Obligations hereunder), and/or its outstanding Term Loans 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 $1,000,000 in the aggregate for the assigning Lender or assigning Lenders, of such Revolving Loan Commitments (and related outstanding Obligations hereunder) and/or outstanding principal amount of Term Loans hereunder 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 such fund or by an Affiliate of such investment advisor, as a single Eligible Transferee), each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment and Assumption Agreement, provided that (i) at such time Schedule I shall be deemed modified to reflect the Revolving Loan Commitments and/or outstanding Term Loans, as the case may be, of such new Lender and of the existing Lenders, (ii) upon surrender of the old Notes, 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 Revolving Loan Commitments and/or 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) the consent of the Swingline Lender and each Issuing Lender shall be required in connection with any assignment of Revolving Loan Commitments pursuant to this Section 13.04(b) (which consent shall not be unreasonably withheld or delayed), (v) the consent of each Bank Guaranty Issuer shall be required in connection with any assignment of Multicurrency Revolving Loan Commitments pursuant to this Section 13.04(b) (which consent shall not be unreasonably withheld or delayed) and (vi) the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500 and, 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/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 -219- 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 Revolving Loan Commitment, if any Revolving Loans, 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 outstanding Revolving Loans of the respective RL Lender and its participation in Letters of Credit and Bank guaranties and its obligation to make Mandatory Borrowings, although any such assignment effected after the termination of the Total Revolving Loan Commitment shall not release the assigning RL Lender from its obligations as a participant with respect to outstanding Letters of Credit or Bank Guaranties or to fund its share of any Mandatory Borrowing (although the respective assignee may agree, as between itself and the respective assigning RL Lender, that it shall be responsible for such amounts). (c) Nothing in this Agreement shall prevent or prohibit any Lender from pledging its Loans and Notes hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank and, with prior notification to the Administrative Agent (but without the consent of the Administrative Agent or any Credit Agreement Party), 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 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. 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. -220- 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 (including, without limitation, as provided in Section 4.02(k)), 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) except as otherwise specifically provided herein, all computations determining the Applicable Margins, Excess Cash Flow, the Leverage Ratio, the Bank Debt Leverage Ratio and compliance with Sections 4, 8.15 and 9, including in each case definitions used therein, shall, in each case, utilize United States accounting principles and policies in effect at the time of the preparation of, and in conformity with those used to prepare, the historical consolidated audited financial statements of the U.S. Borrower delivered to the Lenders pursuant to Section 7.10(b) for the fiscal year of the U.S. Borrower ended December 28, 2002, (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 (excluding Sections 9.08, 9.09, 9.10, 9.11 and 9.13), 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 -221- 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, RL Commitment Commission and other 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, RL Commitment Commission 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 Credit Agreement Party hereby irrevocably accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts. Each Credit Agreement 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 Credit Agreement 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 this Agreement. Each Credit Agreement Party hereby further irrevocably waives any claim that any such courts lack jurisdiction over such Credit Agreement Party, and agrees not to plead or claim, in any legal action or proceeding with respect to this Agreement or any other Credit Document brought in any of the aforesaid courts, that any such court lacks jurisdiction over such Credit Agreement Party. Each Credit Agreement Party 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 Credit Agreement Party, 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 Credit Agreement 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 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 Credit Agreement Party in any other jurisdiction. -222- (b) EACH CREDIT AGREEMENT 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 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 Credit Agreement Party and the Administrative Agent. 13.10 Effectiveness. This Agreement shall become effective on the date (the "Effective Date") on which Holdings, each of the Borrowers, each Agent, the Collateral Agent and each of the Lenders shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered the same (including by way of facsimile transmission) to the Administrative Agent at the Notice Office or at the office of the Administrative Agents' counsel. The Administrative Agent will give Holdings and each Lender prompt written notice of the occurrence of the Effective Date. 13.11 Headings Descriptive. The headings of the several sections and subsections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement. 13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor any other Credit Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective Credit Parties party 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 Revolving Loan 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 extensions of credit of the type provided to the Tranche A Term Loans, -223- Tranche B Term Loans and the Revolving Loan Commitments on the 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 Revolving Loan Commitments are included on the Effective Date), (v) consent to the assignment or transfer by any Credit Agreement Party of any of its rights and obligations under this Agreement, (vi) amend, modify or waive any provision of Section 8.22 or the Capital Call Agreement in any manner adverse to the interests of any Lender or (vii) release the Holdings Guaranty or the U.S. Borrower's Guaranty; provided further, that no such change, waiver, discharge or termination shall (p) amend, modify or waive any condition precedent set forth in Section 6A or 6B with respect to the making of Revolving Loans, Swingline Loans or the issuance of Letters of Credit or Bank Guaranties, without the written consent of the Majority Lenders holding Revolving Loan 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 thereby, amend, modify or waive any provision of Section 2A or alter its rights or obligations with respect to Letters of Credit, (s) without the consent of each Bank Guaranty Issuer affected thereby, amend, modify or waive any provision of Section 2B or alter its rights or obligations with respect to Bank Guaranties, (t) without the consent of the Swingline Lender, alter its rights or obligations with respect to Swingline Loans, (u) 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, (v) without the consent of the Collateral Agent, amend, modify or waive any provision relating to the rights or obligations of the Collateral Agent, (w) except in cases where additional extensions of term loans and/or revolving loans are being afforded substantially the same treatment afforded to the Term Loans and Revolving Loans pursuant to this Agreement as originally in effect, 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(b)) (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), (x) 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 Effective Date), (y) except in cases where additional extensions of term loans and/or revolving loans are being afforded substantially the same treatment afforded to the Term Loans and Revolving Loans pursuant to Section 1.14 (as originally in effect) 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 -224- the consent of the Majority Lenders of each Tranche adversely affected thereby, amend, modify or waive any provisions of Section 1.14 or (z) without the consent of the Supermajority Lenders of the respective Tranche, reduce the amount of or extend the date of, any Tranche A Term Loan Scheduled Repayment or Tranche B Term Loan Scheduled Repayment (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 (z)), 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 Effective Date). Notwithstanding anything to the contrary contained above in this Section 13.12(a), the Administrative Agent and/or the Collateral Agent shall be permitted to (i) enter into such amendments and/or modifications to the Foreign Subsidiaries Guaranty and the Foreign Security Documents entered into by any Columbian Subsidiary Guarantor as may be required to give effect to the purposes of Section 8.24 and (ii) 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. (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 Holdings 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 Holdings 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/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 Tranche of Revolving Loan Commitment of such non-consenting Lender (if such Lender's consent is required as a result of such Tranche of its Revolving 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 3.02(b) 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 Holdings 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 -225- Lender's rights (and the withholding of any required consent by such Lender) pursuant to the second proviso to Section 13.12(a). 13.13 Survival. All indemnities set forth herein including, without limitation, in Sections 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 and the making and repayment of the Loans and the other Obligations. 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 any Credit Agreement Party (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 Holdings 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, and (e) 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. (b) Each Credit Agreement Party hereby acknowledges and agrees that each Lender may share with any of its affiliates or its investment advisors any information related to Holdings 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. (c) Each Credit Agreement Party 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 Credit Agreement Party or to any of its -226- employees or agents, or other persons affiliated with or related to such Credit Agreement Party (or, so far as such Credit Agreement Party is aware, to any other person), as to the potential tax consequences of the Transaction. (d) Neither the Agents nor the Lenders provide accounting, tax or legal advice. Notwithstanding any express or implied claims of exclusivity or proprietary rights, each Credit Agreement Party, each Agent and each Lender hereby agree and acknowledge that each Credit Agreement Party, 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 Transaction, and all materials of any kind (including opinions or other tax analyses) that are provided to any Credit Agreement Party, any Agent or any Lender relating to such tax treatment and tax structure. In this regard, each Credit Agreement Party, each Agent and each Lender acknowledge and agree that the disclosure of the tax treatment and tax structure of the Transaction 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 Credit Agreement Party, each Agent and each Lender that the Transaction is not a "confidential transaction" as that phrase is used in Treasury Regulation Section 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 Credit Agreement Party, 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 Transaction. 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 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 -227- 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 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 (in which event certified English translations thereof shall, upon the request of the Administrative Agent, be provided by Holdings 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 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 Holdings and its Subsidiaries described on Part A of Schedule XIV shall be completed in accordance with Part A of said Schedule XIV. 2. UCC Filings; Filings with respect to Intellectual Property; etc. (i) Holdings and its Subsidiaries were not required to have filed (or cause to have filed) on or prior to the Initial Borrowing Date Financing Statements (Form UCC-1) or any filings with the United States Patent and Trademark Office or the United States Copyright Office necessary to perfect the security interest purported to be created by the U.S. Security Agreement. Not later than the 7th day after the Initial Borrowing Date, Holdings and its Subsidiaries shall have filed (or cause to have filed) all of such Financing Statements (Form UCC-1) and any filings with the United States Patent and Trademark Office or the United States Copyright Office necessary to perfect the security interest purported to be created by the U.S. Security Agreement. 3. Actions by Various Foreign Subsidiaries Relating to Security Documents. Holdings and its Subsidiaries shall be required to take the actions specified in Part B of Schedule XIV as promptly as practicable, and in any event within the time periods set forth in Part B of said Schedule XIV. The provisions of Part B of said Schedule XIV shall be deemed incorporated by reference herein as fully as if set forth herein in its entirety. 4. Actions Relating to Foreign Asset Transfers. Holdings and its Subsidiaries shall be required to take the actions specified in Part C of Schedule XIV as promptly as practicable, and in any event within the time periods set forth in Part C of said Schedule XIV -228- (including, without limitation, the required update of Schedule XIII). The provisions of Part C of said Schedule XIV shall be deemed incorporated by reference herein as fully as if set forth herein in its entirety. 5. Miscellaneous Actions By Various Subsidiaries of Holdings. Holdings and its Subsidiaries shall be required to take the actions specified in Part D of Schedule XIV as promptly as practicable, and in any event within the time periods set forth in Part D of said Schedule XIV. The provisions of Part D of said Schedule XIV 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 Initial Borrowing Date the respective representation and warranty shall be required to be true and correct in all material respects at the time the respective action is taken (or was required to be taken) in accordance with the foregoing provisions of this Section 13.19 and (y) all representations and warranties relating to the Security Documents shall be required to be true immediately after the actions required to be taken by this Section 13.19 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 Credit Agreement Party to each of the Lenders that the actions required pursuant to this Section 13.19 will be, or have been, taken within the relevant time periods referred to in this Section 13.19 and that, at such time, all representations and warranties contained in this Credit Agreement and the other Credit Documents shall then be true and correct without any modification pursuant to this Section 13.19. 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. 13.20 Special Provisions Regarding Pledges of Equity Interests in, and Promissory Notes Owed by, Persons Not Organized in Qualified Jurisdictions. 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 said 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 -229- preceding sentence, it is acknowledged that, as of the Initial Borrowing Date, no actions have been required to be taken to perfect, under local law of the jurisdiction of the Person who issued the respective promissory notes or whose Equity Interests are pledged, under the Security Documents. The Credit Agreement Parties hereby agree that, following any request by the Administrative Agent or Required Lenders to do so, each Credit Agreement Party 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 13.20, all such actions shall be taken in accordance with the provisions of this Section 13.20 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 13.20, 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 13.20 or pursuant to Section 8.11. 13.21 Powers of Attorney; etc. Each of Holdings and 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 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 Holdings 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 13.21 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 Holdings or the U.S. Borrower. 13.22 Waiver of Sovereign Immunity. Each of the Credit Agreement Parties, in respect of itself, its Subsidiaries, its process agents, and its properties and revenues, hereby irrevocably agrees that, to the extent that such Credit Agreement Party, 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 Credit Agreement Party 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 Credit Agreement Party, for itself and on -230- 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 Credit Agreement Party further agrees that the waivers set forth in this Section 13.22 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. 13.23 Judgment Currency. (a) The Credit Parties' obligations hereunder and under the other Credit Documents to make payments in the respective Applicable Currency (the "Obligation Currency") shall not be discharged or satisfied by any tender or recovery pursuant to any judgment expressed in or converted into any currency other than the Obligation Currency, except to the extent that such tender or recovery results in the effective receipt by the Administrative Agent, the Collateral Agent or the respective Lender of the full amount of the Obligation Currency expressed to be payable to the Administrative Agent, the Collateral 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 Euro Equivalent or the Dollar Equivalent thereof, as the case may be, 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, each 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. (c) For purposes of determining the Dollar Equivalent or the Euro Equivalent or any other rate of exchange for this Section, such amounts shall include any premium and costs payable in connection with the purchase of the Obligation Currency. 13.24 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 Lenders and/or their affiliates, 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 -231- Party (but is otherwise subject to the provisions of Section 9.01(c)) and (iii) the obligations secured pursuant to the Security Documents are not secured by any Excluded Collateral. SECTION 14. Holdings 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 Lenders or any of their respective Affiliates to enter into Interest Rate Protection Agreements or Other Hedging Agreements, and in recognition of the direct benefits to be received by Holdings from the proceeds of the Loans, the issuance of the Letters of Credit and Bank Guaranties and the entering into of Interest Rate Protection Agreements or Other Hedging Agreements, Holdings hereby agrees with the Lenders as follows: Holdings 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 the Holdings Guaranteed Obligations to the Guaranteed Creditors. If any or all of the Holdings Guaranteed Obligations to the Guaranteed Creditors becomes due and payable hereunder, Holdings 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 Holdings Guaranteed Obligations. This Holdings Guaranty is a guaranty of payment and not of collection. This Holdings 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 Holdings Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Borrowers and any other Holdings Guaranteed Party), then and in such event Holdings agrees that any such judgment, decree, order, settlement or compromise shall be binding upon Holdings, notwithstanding any revocation of this Holdings Guaranty or any other instrument evidencing any liability of either Borrower or any other Holdings Guaranteed Party, and Holdings 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, Holdings unconditionally and irrevocably guarantees the payment of any and all of the Holdings Guaranteed Obligations to the Guaranteed Creditors whether or not due or payable by either Borrower or any other Holdings 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 Holdings hereunder is exclusive and independent of any security for or other guaranty of the Holdings Guaranteed Obligations whether executed by Holdings, any other guarantor or by any other party, and the liability of Holdings hereunder is not affected or impaired by (a) any direction as to application of payment by either Borrower, any other Holdings 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 Holdings Guaranteed Obligations, or (c) any payment on or in reduction of any -232- such other guaranty or undertaking, or (d) any dissolution, termination or increase, decrease or change in personnel by either Borrower or any other Holdings Guaranteed Party, or (e) any payment made to the Guaranteed Creditors on the Holdings Guaranteed Obligations which any such Guaranteed Creditor repays to either Borrower or any other Holdings Guaranteed Party pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding, and Holdings 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 Holdings Guaranteed Obligations or of any security therefor shall affect, impair or be a defense to this Holdings Guaranty, and this Holdings Guaranty shall be primary, absolute and unconditional notwithstanding the occurrence of any event or the existence of any other circumstances which might constitute a legal or equitable discharge of a surety or guarantor except payment in full in cash of the Holdings Guaranteed Obligations. The obligations of Holdings hereunder are independent of the obligations of either Borrower, any other Holdings Guaranteed Party, any other guarantor or any other party and a separate action or actions may be brought and prosecuted against Holdings whether or not action is brought against either Borrower, any other Holdings Guaranteed Party, any other guarantor or any other party and whether or not either Borrower, any other Holdings Guaranteed Party, any other guarantor or any other party be joined in any such action or actions. Holdings waives, to the full extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement thereof. Any payment by a Borrower or any other Holdings Guaranteed Party or other circumstance that operates to toll any statute of limitations as to such Borrower or such other Holdings Guaranteed Party shall operate to toll the statute of limitations as to Holdings. 14.05 Authorization. Holdings 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 Holdings 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 Holdings Guaranty made shall apply to the Holdings Guaranteed Obligations as so changed, extended, renewed, increased or altered; (b) take and hold security for the payment of the Holdings 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 Holdings 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 either Borrower, any other Holdings Guaranteed Party or others or otherwise act or refrain from acting; -233- (d) release or substitute any one or more endorsers, guarantors, either Borrower, any other Holdings Guaranteed Party or other obligors; (e) settle or compromise any of the Holdings 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 either Borrower or any other Holdings 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 either Borrower or any other Holdings Guaranteed Party to the Guaranteed Creditors regardless of what liability or liabilities of such Borrower or such other Holdings 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 Holdings from its liabilities under this Holdings Guaranty. 14.06 Reliance. It is not necessary for the Guaranteed Creditors to inquire into the capacity or powers of either Borrower or any other Holdings Guaranteed Party or the officers, directors, partners or agents acting or purporting to act on their behalf, and any Holdings 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 either Borrower or any other Holdings Guaranteed Party now or hereafter owing to Holdings is hereby subordinated to the Holdings Guaranteed Obligations of such Borrower or such other Holdings 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 Borrower or such other Holdings Guaranteed Party to Holdings shall be collected, enforced and received by Holdings 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 Holdings Guaranteed Obligations of such Borrower or such Holdings Guaranteed Party to the Guaranteed Creditors, but without affecting or impairing in any manner the liability of Holdings under the other provisions of this Holdings Guaranty. Prior to the transfer by Holdings of any note or negotiable instrument evidencing any of the indebtedness of either Borrower or any other Holdings Guaranteed Party to Holdings, Holdings 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, Holdings hereby agrees with the Guaranteed Creditors that it will not exercise any right of subrogation which it may at -234- any time otherwise have as a result of this Holdings Guaranty (whether contractual, under Section 509 of the Bankruptcy Code or otherwise) until all Holdings Guaranteed Obligations have been irrevocably paid in full in cash. 14.08 Waiver. (a) Holdings waives any right (except as shall be required by applicable statute and cannot be waived) to require any Guaranteed Creditor to (i) proceed against either Borrower, any other Holdings Guaranteed Party, any other guarantor or any other party, (ii) proceed against or exhaust any security held from either Borrower, any other Holdings Guaranteed Party, any other guarantor or any other party or (iii) pursue any other remedy in any Guaranteed Creditor's power whatsoever. Holdings waives any defense based on or arising out of any defense of either Borrower, any other Holdings Guaranteed Party, any other guarantor or any other party, other than payment in full in cash of the Holdings Guaranteed Obligations, based on or arising out of the disability of either Borrower, any other Holdings Guaranteed Party, any other guarantor or any other party, or the unenforceability of the Holdings Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause of the liability of either Borrower or any other Holdings Guaranteed Party other than payment in full in cash of the Holdings 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 either Borrower, any other Holdings Guaranteed Party or any other party, or any security, without affecting or impairing in any way the liability of Holdings hereunder except to the extent the Holdings Guaranteed Obligations have been paid in full in cash. Holdings 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 Holdings against either Borrower, any other Holdings Guaranteed Party or any other party or any security. (b) Holdings 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 Holdings Guaranty, and notices of the existence, creation or incurring of new or additional Holdings Guaranteed Obligations. Holdings assumes all responsibility for being and keeping itself informed of each Borrower's and each other Holdings Guaranteed Party's financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Holdings Guaranteed Obligations and the nature, scope and extent of the risks which Holdings assumes and incurs hereunder, and agrees that the Guaranteed Creditors shall have no duty to advise Holdings of information known to them regarding such circumstances or risks. (c) Until such time as the Holdings Guaranteed Obligations have been paid in full in cash, Holdings hereby waives all rights of subrogation which it may at any time otherwise have as a result of this Holdings Guaranty (whether contractual, under Section 509 of the Bankruptcy Code, or otherwise) to the claims of the Guaranteed Creditors against either Borrower, any other Holdings Guaranteed Party or any other guarantor of the Holdings Guaranteed Obligations and all contractual, statutory or common law rights of reimbursement, contribution or indemnity from either Borrower, any other Holdings Guaranteed Party or any other guarantor which it may at any time otherwise have as a result of this Holdings Guaranty. -235- (d) Holdings hereby acknowledges and affirms that it understands that to the extent the Holdings Guaranteed Obligations are secured by Real Property located in California, Holdings 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 Holdings' or any Guaranteed Creditor's right to proceed against either Borrower, any other Holdings Guaranteed Party or any other guarantor of the Holdings Guaranteed Obligations. In accordance with Section 2856 of the California Code of Civil Procedure, Holdings hereby waives: (i) all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to Holdings by reason of Sections 2787 to 2855, inclusive, 2899 and 3433 of the California Code of Civil Procedure; (ii) all rights and defenses that Holdings may have because the Holdings Guaranteed Obligations are secured by Real Property located in California, meaning, among other things, that: (A) the Guaranteed Creditors may collect from Holdings without first foreclosing on any real or personal property collateral pledged by either Borrower or any other Credit Party, and (B) if the Guaranteed Creditors foreclose on any Real Property collateral pledged by either Borrower or any other Credit Party, (1) the amount of the Holdings 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 Holdings even if the Guaranteed Creditors, by foreclosing on the Real Property collateral, have destroyed any right Holdings may have to collect from either Borrower or any other Holdings Guaranteed Party, it being understood that this is an unconditional and irrevocable waiver of any rights and defenses Holdings may have because the Holdings 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 Holdings Guaranteed Obligations, has destroyed Holdings' rights of subrogation and reimbursement against either Borrower or any other Holdings Guaranteed Party by the operation of Section 580d of the California Code of Civil Procedure or otherwise. (e) Holdings warrants and agrees that each of the waivers set forth above is made with full knowledge of its significance and consequences and that if any of such waivers are determined to be contrary to any applicable law of public policy, such waivers shall be effective only to the maximum extent permitted by law. 14.09 Payments. All payments made by Holdings pursuant to this Section 14 shall be made in the respective Applicable Currency in which the Holdings 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 Holdings -236- 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 13.23. SECTION 15. U.S. Borrower's Guaranty. 15.01 The U.S. Borrower's Guaranty. In order to induce the Lenders to enter into this Agreement and to extend credit hereunder and to induce the Lenders or any of their respective Affiliates to enter into Interest Rate Protection Agreements or Other Hedging Agreements, and in recognition of the direct benefits to be received by the U.S. Borrower from the proceeds of the Loans, the issuance of the Letters of Credit and Bank Guaranties and the entering into of Interest Rate Protection Agreements or Other Hedging Agreements, the U.S. Borrower hereby agrees with the Lenders as follows: the U.S. 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 the U.S. Borrower Guaranteed Obligations to the Guaranteed Creditors. If any or all of the U.S. Borrower Guaranteed Obligations to the Guaranteed Creditors becomes due and payable hereunder, the U.S. 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 U.S. Borrower Guaranteed Obligations. This U.S. Borrower's Guaranty is a guaranty of payment and not of collection. This U.S. Borrower's 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 U.S. Borrower Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the Bermuda Borrower or any other U.S. Borrower Guaranteed Party), then and in such event the U.S. Borrower agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the U.S. Borrower, notwithstanding any revocation of this U.S. Borrower's Guaranty or any other instrument evidencing any liability of the Bermuda Borrower or any U.S. Borrower Guaranteed Party, and the U.S. 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. 15.02 Bankruptcy. Additionally, the U.S. Borrower unconditionally and irrevocably, guarantees the payment of any and all of the U.S. Borrower Guaranteed Obligations to the Guaranteed Creditors whether or not due or payable by the Bermuda Borrower or any other U.S. Borrower 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. 15.03 Nature of Liability. The liability of the U.S. Borrower hereunder is exclusive and independent of any security for or other guaranty of the U.S. Borrower Guaranteed Obligations whether executed by the U.S. Borrower, any other guarantor or by any other party, and the liability of the U.S. Borrower hereunder is not affected or impaired by (a) any direction -237- as to application of payment by the Bermuda Borrower, any other U.S. Borrower 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 U.S. Borrower Guaranteed Obligations, or (c) any payment on or in reduction of any such other guaranty or undertaking, or (d) any dissolution, termination or increase, decrease or change in personnel by the Bermuda Borrower or any other U.S. Borrower Guaranteed Party or (e) any payment made to the Guaranteed Creditors on the U.S. Borrower Guaranteed Obligations which any such Guaranteed Creditor repays to the Bermuda Borrower or any other U.S. Borrower Guaranteed Party pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding, and the U.S. 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 15.05, or (g) the lack of validity or enforceability of any Credit Document or any other instrument relating thereto. 15.04 Independent Obligation. No invalidity, irregularity or unenforceability of all or any part of the U.S. Borrower Guaranteed Obligations or of any security therefor shall affect, impair or be a defense to this U.S. Borrower's Guaranty, and this U.S. Borrower's Guaranty shall be primary, absolute and unconditional notwithstanding the occurrence of any event or the existence of any other circumstances which might constitute a legal or equitable discharge of a surety or guarantor except payment in full in cash of the U.S. Borrower Guaranteed Obligations. The obligations of the U.S. Borrower hereunder are independent of the obligations of the Bermuda Borrower, any other U.S. Borrower Guaranteed Party, any other guarantor or any other party, and a separate action or actions may be brought and prosecuted against the U.S. Borrower whether or not action is brought against the Bermuda Borrower, any other U.S. Borrower Guaranteed Party, any other guarantor or any other party and whether or not the Bermuda Borrower, any other U.S. Borrower Guaranteed Party, any other guarantor or any other party be joined in any such action or actions. The U.S. Borrower waives, to the full extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement thereof. Any payment by the Bermuda Borrower or any other U.S. Borrower Guaranteed Party or other circumstance that operates to toll any statute of limitations as to the Bermuda Borrower or such other U.S. Borrower Guaranteed Party shall operate to toll the statute of limitations as to the U.S. Borrower. 15.05 Authorization. The U.S. 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 U.S. Borrower 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 U.S. Borrower's Guaranty made shall apply to the U.S. Borrower Guaranteed Obligations as so changed, extended, renewed, increased or altered; (b) take and hold security for the payment of the U.S. Borrower 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 -238- mortgaged to secure, or howsoever securing, the U.S. Borrower Guaranteed Obligations or any liabilities (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and/or any offset thereagainst; (c) exercise or refrain from exercising any rights against the Bermuda Borrower, any other U.S. Borrower Guaranteed Party or others or otherwise act or refrain from acting; (d) release or substitute any one or more endorsers, guarantors, the Bermuda Borrower, any other U.S. Borrower Guaranteed Party or other obligors; (e) settle or compromise any of the U.S. Borrower Guaranteed Obligations, any security therefor or any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of the Bermuda Borrower or any other U.S. Borrower 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 the Bermuda Borrower or any other U.S. Borrower Guaranteed Party to the Guaranteed Creditors regardless of what liability or liabilities of the Bermuda Borrower or such other U.S. Borrower 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 the U.S. Borrower from its liabilities under this U.S. Borrower's Guaranty. 15.06 Reliance. It is not necessary for the Guaranteed Creditors to inquire into the capacity or powers of the Bermuda Borrower or any other U.S. Borrower Guaranteed Party or the officers, directors, partners or agents acting or purporting to act on its or their behalf, and any U.S. Borrower Guaranteed Obligations made or created in reliance upon the professed exercise of such powers shall be guaranteed hereunder. 15.07 Subordination. Any of the indebtedness of the Bermuda Borrower or any other U.S. Borrower Guaranteed Party now or hereafter owing to the U.S. Borrower is hereby subordinated to the U.S. Borrower Guaranteed Obligations of the Bermuda Borrower or such other U.S. Borrower 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 the Bermuda Borrower or such other U.S. Borrower Guaranteed Party to the U.S. Borrower shall be collected, enforced and received by the U.S. Borrower for the benefit of the Guaranteed Creditors and be paid over to the Administrative Agent on behalf of the -239- Guaranteed Creditors on account of the U.S. Borrower Guaranteed Obligations of the Bermuda Borrower or such other U.S. Borrower Guaranteed Party to the Guaranteed Creditors, but without affecting or impairing in any manner the liability of the U.S. Borrower under the other provisions of this U.S. Borrower's Guaranty. Prior to the transfer by the U.S. Borrower of any note or negotiable instrument evidencing any of the indebtedness of the Bermuda Borrower or any other U.S. Borrower Guaranteed Party to the U.S. Borrower, the U.S. 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, the U.S. 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 U.S. Borrower's Guaranty (whether contractual, under Section 509 of the Bankruptcy Code or otherwise) until all U.S. Borrower Guaranteed Obligations have been irrevocably paid in full in cash. 15.08 Waiver. (a) The U.S. 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 the Bermuda Borrower, any other U.S. Borrower Guaranteed Party, any other guarantor or any other party, (ii) proceed against or exhaust any security held from the Bermuda Borrower, any other U.S. Borrower Guaranteed Party, any other guarantor or any other party or (iii) pursue any other remedy in any Guaranteed Creditor's power whatsoever. The U.S. Borrower waives any defense based on or arising out of any defense of the Bermuda Borrower, any other U.S. Borrower Guaranteed Party, any other guarantor or any other party, other than payment in full in cash of the U.S. Borrower Guaranteed Obligations, based on or arising out of the disability of the Bermuda Borrower, any other Guaranteed Party, any other guarantor or any other party, or the unenforceability of the U.S. Borrower Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause of the liability of the Bermuda Borrower or any other U.S. Borrower Guaranteed Party other than payment in full in cash of the U.S. Borrower Guaranteed Obligations. The Guaranteed Creditors may, at their election, foreclose on any security held by the Administrative Agent, the Collateral Agent or any other Guaranteed Creditor by one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable (to the extent such sale is permitted by applicable law), or exercise any other right or remedy the Guaranteed Creditors may have against the Bermuda Borrower, any other U.S. Borrower Guaranteed Party or any other party, or any security, without affecting or impairing in any way the liability of the U.S. Borrower hereunder except to the extent the U.S. Borrower Guaranteed Obligations have been paid in full in cash. The U.S. 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 the U.S. Borrower against the Bermuda Borrower, any other U.S. Borrower Guaranteed Party or any other party or any security. (b) The U.S. 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 U.S. Borrower's Guaranty, and notices of the existence, creation or incurring of new or additional U.S. Borrower Guaranteed Obligations. The U.S. Borrower assumes all responsibility for being and keeping itself informed of the Bermuda Borrower's and each other U.S. Borrower Guaranteed Party's financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the U.S. Borrower Guaranteed Obligations and the nature, scope and extent of the risks which the U.S. Borrower assumes and -240- incurs hereunder, and agrees that the Guaranteed Creditors shall have no duty to advise the U.S. Borrower of information known to them regarding such circumstances or risks. (c) Until such time as the U.S. Borrower Guaranteed Obligations have been paid in full in cash, the U.S. Borrower hereby waives all rights of subrogation which it may at any time otherwise have as a result of this U.S. Borrower's Guaranty (whether contractual, under Section 509 of the Bankruptcy Code, or otherwise) to the claims of the Guaranteed Creditors against the Bermuda Borrower, any other U.S. Borrower Guaranteed Party or any other guarantor of the U.S. Borrower Guaranteed Obligations and all contractual, statutory or common law rights of reimbursement, contribution or indemnity from the Bermuda Borrower, any other U.S. Borrower Guaranteed Party or any other guarantor which it may at any time otherwise have as a result of this U.S. Borrower's Guaranty. (d) The U.S. Borrower hereby acknowledges and affirms that it understands that to the extent the U.S. Borrower Guaranteed Obligations are secured by Real Property located in California, the U.S. Borrower 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 the U.S. Borrower's or any Guaranteed Creditor's right to proceed against any U.S. Borrower Guaranteed Party or any other guarantor of the U.S. Borrower Guaranteed Obligations. In accordance with Section 2856 of the California Code of Civil Procedure, the U.S. Borrower hereby waives: (i) all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to the U.S. Borrower by reason of Sections 2787 to 2855, inclusive, 2899 and 3433 of the California Code of Civil Procedure; (ii) all rights and defenses that the U.S. Borrower may have because the U.S. Borrower Guaranteed Obligations are secured by Real Property located in California, meaning, among other things, that: (A) the Guaranteed Creditors may collect from the U.S. Borrower 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 U.S. Borrower 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 the U.S. Borrower even if the Guaranteed Creditors, by foreclosing on the Real Property collateral, have destroyed any right the U.S. Borrower may have to collect from any U.S. Borrower Guaranteed Party, it being understood that this is an unconditional and irrevocable waiver of any rights and defenses the U.S. Borrower may have because the U.S. Borrower 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 non-judicial foreclosure with respect to security for the U.S. Borrower Guaranteed Obligations, has destroyed the U.S. Borrower' rights of subrogation and reimbursement against any U.S. -241- Borrower Guaranteed Party by the operation of Section 580d of the California Code of Civil Procedure or otherwise. (e) The U.S. 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 determined to be contrary to any applicable law of public policy, such waivers shall be effective only to the maximum extent permitted by law. 15.09 Payments. All payments made by the U.S. Borrower pursuant to this Section 15 shall be made in the respective Applicable Currency in which the U.S. Borrower 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 the U.S. Borrower pursuant to this Section 15 will be made without setoff, counterclaim or other defense, and shall be subject to the provisions of Sections 4.03, 4.04 and 13.23. * * * * -242- IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Agreement as of the date first above written. Address: [________________________ DHM HOLDING COMPANY, INC. _________________________] Telephone No.: By ________________________________________ Facsimile No.: Name: Attention: [____________] Title: [________________________ DOLE FOOD COMPANY, INC. _________________________] Telephone No.: By ________________________________________ Facsimile No.: Name: Attention: [____________] Title: [________________________ SOLVEST, LTD. _________________________] Telephone No.: By ________________________________________ Facsimile No.: Name: Attention: [____________] Title: DEUTSCHE BANK AG NEW YORK BRANCH, Individually and as Administrative Agent By ________________________________________ Name: Title: By ________________________________________ Name: Title: THE BANK OF NOVA SCOTIA, Individually and as Co-Syndication Agent By ________________________________________ Name: Title: BANC OF AMERICA SECURITIES LLC, as Co-Syndication Agent By ________________________________________ Name: Title: BANK OF AMERICA, N.A. By ________________________________________ Name: Title: FLEET NATIONAL BANK, Individually and as Co-Documentation Agent By ________________________________________ Name: Title: SOCIETE GENERALE, Individually and as Co-Documentation Agent By ________________________________________ Name: Title: -2- [ADDITIONAL LENDERS] By ________________________________________ Name: Title: -3- EX-4.10 6 a89799exv4w10.txt EXHIBIT 4.10 EXHIBIT 4.10 DOLE FOOD COMPANY, INC., AS ISSUER THE GUARANTORS PARTY HERETO, AS GUARANTORS 8-7/8% SENIOR NOTES DUE 2011 ------------------ INDENTURE DATED AS OF MARCH 28, 2003 ------------------ WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE CROSS-REFERENCE TABLE*

Trust Indenture Act Section Indenture Section - --------------------------- ----------------- 310(a)(1)...................................................................... 7.10 (a)(2)...................................................................... 7.10 (a)(3)...................................................................... N.A. (a)(4)...................................................................... N.A. (a)(5)...................................................................... 7.10 (b)......................................................................... 7.3, 7.8, 7.10 (c)......................................................................... N.A. 311(a)......................................................................... 7.11 (b)......................................................................... 7.11 (c)......................................................................... N.A. 312(a)......................................................................... 2.5 (b)......................................................................... 13.3 (c)......................................................................... 13.3 313(a)......................................................................... 7.6 (b)(1)...................................................................... N.A. (b)(2)...................................................................... 7.6 (c)......................................................................... 7.6, 13.2 314(a)......................................................................... 4.3, 4.4 (b)......................................................................... N.A. (c)(1)...................................................................... 13.4 (c)(2)...................................................................... 13.4 (c)(3)...................................................................... 13.4 (d)......................................................................... N.A. (e)......................................................................... 13.5 (f)......................................................................... N.A. 315(a)......................................................................... 7.2 (b)......................................................................... 7.5, 13.2 (c)......................................................................... 7.1 (d)......................................................................... 7.1 (e)......................................................................... 6.12 316(a)(last sentence).......................................................... 2.9 (a)(1)(A)................................................................... 6.5 (a)(1)(B)................................................................... 6.4 (a)(2)...................................................................... N.A. (b)......................................................................... 6.7 (c)......................................................................... N.A. 317(a)(1)...................................................................... 6.8 (a)(2)...................................................................... 6.10 (b)......................................................................... 2.4 318(a)......................................................................... 13.1 (b)......................................................................... N.A. (c)......................................................................... 13.1

N.A. MEANS NOT APPLICABLE. - -------------------------- This Cross-Reference Table shall not, for any purpose, be deemed a part of the Indenture. TABLE OF CONTENTS

Page ---- ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE Section 1.1. Definitions................................................................................... 1 Section 1.2. Other Definitions............................................................................. 31 Section 1.3. Incorporation by Reference of Trust Indenture Act............................................. 32 Section 1.4. Rules of Construction......................................................................... 32 Section 1.5. Acts of Holders............................................................................... 33 ARTICLE II. THE NOTES Section 2.1. Form and Dating............................................................................... 33 Section 2.2. Execution and Authentication.................................................................. 35 Section 2.3. Registrar and Paying Agent.................................................................... 36 Section 2.4. Paying Agents to Hold Money in Trust.......................................................... 36 Section 2.5. Holder Lists.................................................................................. 37 Section 2.6. Transfer and Exchange......................................................................... 37 Section 2.7. Replacement Notes............................................................................. 46 Section 2.8. Outstanding Notes............................................................................. 46 Section 2.9. Treasury Notes................................................................................ 47 Section 2.10. Temporary Notes............................................................................... 47 Section 2.11. Cancellation.................................................................................. 47 Section 2.12. Defaulted Interest............................................................................ 47 Section 2.13. Persons Deemed Owners......................................................................... 48 Section 2.14. CUSIP Numbers................................................................................. 48 ARTICLE III. REDEMPTION AND REPURCHASE Section 3.1. Notices to Trustee............................................................................ 48 Section 3.2. Selection of Notes............................................................................ 49 Section 3.3. Notice of Optional or Special Redemption...................................................... 50 Section 3.4. Effect of Notice of Redemption................................................................ 51 Section 3.5. Deposit of Redemption Price or Purchase Price................................................. 51 Section 3.6. Notes Redeemed or Repurchased in Part......................................................... 52 Section 3.7. Optional Redemption........................................................................... 52 Section 3.8. Optional Redemption Upon Equity Offerings..................................................... 52

Page ---- Section 3.9. Repurchase upon Change of Control Offer....................................................... 52 Section 3.10. Repurchase upon Application of Excess Proceeds................................................ 55 ARTICLE IV. COVENANTS Section 4.1. Payment of Principal and Interest............................................................. 57 Section 4.2. Maintenance of Office or Agency............................................................... 57 Section 4.3. Reports....................................................................................... 58 Section 4.4. Compliance Certificate........................................................................ 58 Section 4.5. Taxes......................................................................................... 59 Section 4.6. Stay, Extension and Usury Laws................................................................ 59 Section 4.7. Limitation on Restricted Payments............................................................. 60 Section 4.8. Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries....... 64 Section 4.9. Limitation on Incurrence of Additional Indebtedness........................................... 66 Section 4.10. Limitation on Asset Sales..................................................................... 66 Section 4.11. Limitations on Transactions with Affiliates................................................... 69 Section 4.12. Limitation on Liens........................................................................... 71 Section 4.13. Continued Existence........................................................................... 72 Section 4.14. Insurance Matters............................................................................. 72 Section 4.15. Offer to Repurchase upon Change of Control.................................................... 72 Section 4.16. Additional Subsidiary Guarantees.............................................................. 73 Section 4.17. Conduct of Business........................................................................... 74 Section 4.18. Payments for Consent.......................................................................... 74 Section 4.19. Limitation on Issuance of Preferred Stock of Restricted Subsidiaries.......................... 74 Section 4.20. Prohibition on Incurrence of Senior Subordinated Guarantees................................... 74 Section 4.21. Limitation of Guarantees by Restricted Subsidiaries........................................... 74 Section 4.22. Capital Call Agreement........................................................................ 75 Section 4.23. Existing Notes Covenants...................................................................... 75 ARTICLE V. SUCCESSORS Section 5.1. Merger, Consolidation and Sale of Assets...................................................... 81 Section 5.2. Successor Corporation Substituted............................................................. 83

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Page ---- ARTICLE VI. DEFAULTS AND REMEDIES Section 6.1. Events of Default............................................................................. 83 Section 6.2. Acceleration.................................................................................. 85 Section 6.3. Other Remedies................................................................................ 86 Section 6.4. Waiver of Past Defaults....................................................................... 87 Section 6.5. Control by Majority........................................................................... 87 Section 6.6. Limitation on Suits........................................................................... 87 Section 6.7. Rights of Holders of Notes To Receive Payment................................................. 88 Section 6.8. Collection Suit by Trustee.................................................................... 88 Section 6.9. Notice........................................................................................ 88 Section 6.10. Trustee May File Proofs of Claim.............................................................. 88 Section 6.11. Priorities.................................................................................... 89 Section 6.12. Undertaking for Costs......................................................................... 89 ARTICLE VII. TRUSTEE Section 7.1. Duties of Trustee............................................................................. 90 Section 7.2. Rights of Trustee............................................................................. 91 Section 7.3. Individual Rights of Trustee.................................................................. 92 Section 7.4. Trustee's Disclaimer.......................................................................... 92 Section 7.5. Notice of Defaults............................................................................ 93 Section 7.6. Reports by Trustee to Holder of the Notes..................................................... 93 Section 7.7. Compensation, Reimbursement and Indemnity..................................................... 93 Section 7.8. Replacement of Trustee........................................................................ 94 Section 7.9. Successor Trustee by Merger, Etc.............................................................. 95 Section 7.10. Eligibility; Disqualification................................................................. 96 Section 7.11. Preferential Collection of Claims Against Company............................................. 96 ARTICLE VIII. LEGAL DEFEASANCE AND COVENANT DEFEASANCE Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance...................................... 96 Section 8.2. Legal Defeasance and Discharge................................................................ 96 Section 8.3. Covenant Defeasance........................................................................... 97 Section 8.4. Conditions to Legal or Covenant Defeasance.................................................... 97 Section 8.5. Deposited Money and U.S. Government Obligations To Be Held in Trust; Other Miscellaneous Provisions...................................................................... 99 Section 8.6. Repayment to the Company...................................................................... 100 Section 8.7. Reinstatement................................................................................. 100

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Page ---- ARTICLE IX. AMENDMENT, SUPPLEMENT AND WAIVER Section 9.1. Without Consent of Holders of Notes........................................................... 100 Section 9.2. With Consent of Holders of Notes.............................................................. 101 Section 9.3. Compliance with Trust Indenture Act........................................................... 103 Section 9.4. Revocation and Effect of Consents............................................................. 103 Section 9.5. Notation on or Exchange of Notes.............................................................. 103 Section 9.6. Trustee To Sign Amendment, Etc................................................................ 104 ARTICLE X. SUBORDINATION OF THE GUARANTEES Section 10.1. Guarantees Subordinated to Guarantor Senior Debt.............................................. 104 Section 10.2. Suspension of Payment When Guarantor Senior Debt Is in Default................................ 105 Section 10.3. Guarantees Subordinated to Prior Payment of All Guarantor Senior Debt on Dissolution, Liquidation or Reorganization of the Guarantors............................................... 106 Section 10.4. Payments May Be Paid Prior to Dissolution..................................................... 108 Section 10.5. Holders To Be Subrogated to Rights of Holders of Guarantor Senior Debt........................ 108 Section 10.6. Obligations of Guarantors Unconditional....................................................... 109 Section 10.7. Notice to Trustee............................................................................. 109 Section 10.8. Reliance on Judicial Order or Certificate of Liquidating Agent................................ 110 Section 10.9. Trustee's Relation to Guarantor Senior Debt................................................... 110 Section 10.10.Subordination Rights Not Impaired by Acts or Omissions of the Guarantors or Holders of Guarantor Senior Debt............................................... 110 Section 10.11.Securityholders Authorize Trustee To Effectuate Subordination of Guarantees................... 111 Section 10.12.This Article X Not To Prevent Events of Default............................................... 112 Section 10.13.Trustee's Compensation Not Prejudiced......................................................... 112 ARTICLE XI. GUARANTEE Section 11.1. Unconditional Guarantee....................................................................... 112 Section 11.2. Severability.................................................................................. 113 Section 11.3. Limitation of Guarantor's Liability........................................................... 113 Section 11.4. Release of Guarantor.......................................................................... 113

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Page ---- Section 11.5. Immediate Payment............................................................................. 114 Section 11.6. Waiver of Subrogation......................................................................... 114 Section 11.7. Execution of Guarantee........................................................................ 115 Section 11.8. Waiver of Stay, Extension or Usury Laws....................................................... 115 ARTICLE XII. SATISFACTION AND DISCHARGE Section 12.1. Satisfaction and Discharge.................................................................... 115 Section 12.2. Application of Trust.......................................................................... 116 ARTICLE XIII. MISCELLANEOUS Section 13.1. Trust Indenture Act Controls.................................................................. 117 Section 13.2. Notices....................................................................................... 117 Section 13.3. Communication by Holders of Notes with Other Holders of Notes................................. 118 Section 13.4. Certificate and Opinion as to Conditions Precedent............................................ 118 Section 13.5. Statements Required in Certificate or Opinion................................................. 119 Section 13.6. Rules by Trustee and Agents................................................................... 119 Section 13.7. No Personal Liability of Directors, Officers, Employees and Stockholders...................... 119 Section 13.8. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial............................... 120 Section 13.9. No Adverse Interpretation of Other Agreements................................................. 120 Section 13.10.Successors.................................................................................... 121 Section 13.11.Severability.................................................................................. 121 Section 13.12.Counterpart Originals......................................................................... 121 Section 13.13.Table of Contents, Headings, Etc.............................................................. 121 Section 13.14.Qualification of Indenture.................................................................... 121

EXHIBITS Exhibit A Form of Series A Note Exhibit B Form of Series B Note Exhibit C Form of Guarantee Exhibit D(1) Form of Regulation S Certification -v- Exhibit D(2) Form of Certificate to Be Delivered upon Exchange or Registration of Transfer of Notes Exhibit E Form of Certificate to Be Delivered in Connection with Transfers to Non-QIB Accredited Investors Exhibit F Form of Certificate to Be Delivered in Connection with Transfers Pursuant to Regulation S -vi- INDENTURE INDENTURE dated as of March 28, 2003 among Dole Food Company, Inc., a Delaware corporation (the "Company"), the Guarantors (as defined herein) listed on Schedule A hereto and Wells Fargo Bank, National Association, as trustee (the "Trustee"). Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders (as defined below) of the Company's 8-7/8% Senior Notes due 2011: ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE Section 1.1. Definitions. "Acquired Indebtedness" means Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary of the Company or at the time it merges or consolidates with or into the Company or any of its Restricted Subsidiaries or assumed in connection with the acquisition of assets from such Person and in each case not incurred by such Person in connection with, or in anticipation or contemplation of, such Person becoming a Restricted Subsidiary of the Company or such acquisition, merger or consolidation. "Additional Interest" means all additional interest then owing pursuant to Section 4 of the Registration Rights Agreement. "Additional Notes" means Notes, in addition to, and having identical terms as, the $475,000,000 aggregate principal amount of Series A Notes issued on the Issue Date (or the Series B Notes issued in exchange for the Series A Notes issued on the Issue Date), issued pursuant to Article II and in compliance with Section 4.9 "Affiliate" means, with respect to any specified Person, any other Person who directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person. The term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative of the foregoing. "Agent" means any Registrar, Paying Agent or co-registrar. -2- "Asset Acquisition" means (1) an Investment by the Company or any Restricted Subsidiary of the Company in any other Person pursuant to which such Person shall become a Restricted Subsidiary of the Company or any Restricted Subsidiary of the Company, or shall be merged with or into the Company or any Restricted Subsidiary of the Company, or (2) the acquisition by the Company or any Restricted Subsidiary of the Company of the assets of any Person (other than a Restricted Subsidiary of the Company) which constitutes all or substantially all of the assets of such Person or comprises any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary course of business. "Asset Sale" means any direct or indirect sale, issuance, conveyance, transfer, lease (other than operating leases entered into in the ordinary course of business), assignment or other transfer for value by the Company or any of its Restricted Subsidiaries (including any Sale and Leaseback Transaction) to any Person other than the Company, a Guarantor or a Wholly Owned Restricted Subsidiary of the Company of: (1) any Capital Stock of any Restricted Subsidiary of the Company; or (2) any other property or assets of the Company or any Restricted Subsidiary of the Company other than in the ordinary course of business; provided, however, that none of the following shall be considered an Asset Sale: (a) a transaction or series of related transactions for which the Company or its Restricted Subsidiaries receive aggregate consideration of less than $5.0 million; (b) the sale, lease, conveyance, disposition or other transfer of all or substantially all of the assets of the Company as permitted under Article V; (c) the grant of Liens not prohibited by this Indenture; (d) any Restricted Payment permitted by Section 4.7 or that constitutes a Permitted Investment; (e) the sale or discount, in each case without recourse, of accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof; and (f) disposals or replacements of obsolete, worn out, uneconomical or surplus property or equipment. "Asset Swap" means the execution of a definitive agreement, subject only to customary closing conditions that the Company in good faith believes will be satisfied, for a substantially concurrent purchase and sale, or exchange, of assets (of a kind used or usable by the Company and its Restricted Subsidiaries in their business as it exists on the date thereof, or in businesses that are the same as such business of the Company and its Restricted Subsidiaries on the date thereof or similar or reasonably related thereto) between the Company or any of its Restricted Subsidiaries and another Person or group of affiliated Persons; provided, however, that any amendment to or waiver of any closing condition that individually or in the aggregate is material to the Asset Swap shall be deemed to be a new Asset Swap. "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal or state law for the relief of debtors. "Board of Directors" means, as to any Person, the board of directors (or similar governing body) of such Person or any duly authorized committee thereof. -3- "Board Resolution" means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Business Day" means any day other than a Saturday, a Sunday or a day on which banking institutions in the City of New York or at a place of payment are authorized by law, regulation or executive order to remain closed. If a payment date is not a Business Day at a place of payment, payment may be made at that place on the next succeeding day that is a Business Day, and no interest shall accrue for the intervening period. "Capital Call Agreement" means the Capital Call Agreement to be dated on or about the Issue Date by and among David H. Murdock, individually, and as trustee for the David H. Murdock Living Trust, Holdings and Deutsche Bank AG New York Branch, as administrative agent. "Capital Stock" means: (1) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, including each class of Common Stock and Preferred Stock of such Person, and all options, warrants or other rights to purchase or acquire any of the foregoing; and (2) with respect to any Person that is not a corporation, any and all partnership, membership or other equity interests of such Person, and all options, warrants or other rights to purchase or acquire any of the foregoing. "Capitalized Lease Obligation" means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as capital lease obligations under GAAP and, for purposes of this definition, the amount of such obligations at any date shall be the capitalized amount of such obligations at such date, determined in accordance with GAAP. "Cash Equivalents" means: (1) U.S. dollars, pounds sterling, Euros or, in the case of any Foreign Restricted Subsidiary, such local currencies held by it from time to time in the ordinary course of business; (2) securities issued by, or unconditionally guaranteed by, the United States Government, the governments of Canada, Japan, Sweden, Switzerland or the member states of the United Kingdom or the European Union or issued by any agency -4- thereof and backed by the full faith and credit of the United States, Canada, Japan, Sweden, Switzerland or the member states of the United Kingdom or the European Union, in each case maturing within one year from the date of acquisition thereof; (3) securities issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either Standard & Poor's Ratings Group ("S&P") or Moody's Investors --- Service, Inc. ("Moody's"); (4) commercial paper maturing no more than one year from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 from S&P or at least P-1 from Moody's; (5) certificates of deposit or bankers' acceptances maturing within one year from the date of acquisition thereof issued by any bank organized under the laws of the United States of America or any state thereof or the District of Columbia or any U.S. branch of a foreign bank having at the date of acquisition thereof combined capital and surplus of not less than $250.0 million or by a commercial bank organized under the laws of a country recognized by the United States which has a combined capital and surplus of not less than $250.0 million (or the foreign currency equivalent thereof); or money market funds sponsored by a registered broker dealer or mutual fund distributor; (6) eurodollar time deposits; (7) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (1) or (2) above entered into with any bank meeting the qualifications specified in clause (5) above; and (8) investments in money market funds which invest substantially all their assets in securities of the types described in clauses (1) through (7) above; provided that for purposes of the subordination provisions, the term "Cash Equivalents" shall not include obligations of the type referred to in clause (7). "Change of Control" means the occurrence of one or more of the following events: (1) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets of the Company or Holdings to any Person or group of related Persons for purposes of Section 13(d) of the Exchange Act (a "Group"), together with any Affiliates thereof (whether or not otherwise -5- in compliance with the provisions of this Indenture), other than to the Permitted Holders; (2) the approval by the holders of Capital Stock of the Company or Holdings, as the case may be, of any plan or proposal for the liquidation or dissolution of the Company or Holdings, as the case may be (whether or not otherwise in compliance with the provisions of this Indenture); (3) any Person or Group (other than the Permitted Holders and any entity formed by the Permitted Holders for the purpose of owning Capital Stock of the Company) shall become the owner, directly or indirectly, beneficially or of record, of shares representing more than 50% of the aggregate ordinary voting power represented by the issued and outstanding Capital Stock of the Company or Holdings; or (4) the replacement of a majority of the Board of Directors of the Company or Holdings over a two-year period from the directors who constituted the Board of Directors of the Company or Holdings, as the case may be, at the beginning of such period, and such replacement shall not have been approved by a vote of either the holders of a majority of the shares of Common Stock of Holdings (so long as the Permitted Holders hold a majority of the Common Stock of Holdings) or at least a majority of the Board of Directors of the Company or Holdings, as the case may be, then still in office who either were members of such Board of Directors at the beginning of such period or whose election as a member of such Board of Directors was previously so approved. "Clearstream" shall mean Clearstream Banking, Societe Anonyme, Luxembourg. "Commission" means the Securities and Exchange Commission. "Commodities Agreements" means commodity agreements, hedging agreements and other similar agreements or arrangements designed to protect the Company or any Restricted Subsidiary of the Company against price fluctuations of commodities (e.g., fuel) used in their respective businesses. "Common Stock" of any Person means any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of, such Person's common stock, whether outstanding on the Issue Date or issued after the Issue Date, and includes, without limitation, all series and classes of such common stock. -6- "Company" means Dole Food Company, Inc., a Delaware corporation, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter means such successor Person. "Consolidated EBITDA" means, with respect to any Person, for any period, the sum (without duplication) of: (1) Consolidated Net Income; and (2) to the extent Consolidated Net Income has been reduced thereby: (a) all income taxes of such Person and its Restricted Subsidiaries paid or accrued in accordance with GAAP for such period; (b) Consolidated Interest Expense; and (c) Consolidated Non-cash Charges less any non-cash items increasing Consolidated Net Income for such period, all as determined on a consolidated basis for such Person and its Restricted Subsidiaries in accordance with GAAP. "Consolidated Fixed Charge Coverage Ratio" means, with respect to any Person, the ratio of Consolidated EBITDA of such Person during the four full fiscal quarters (the "Four Quarter Period") ending prior to the date of the transaction giving rise to the need to calculate the Consolidated Fixed Charge Coverage Ratio for which financial statements are available (the "Transaction Date") to Consolidated Fixed Charges of such Person for the Four Quarter Period. In addition to and without limitation of the foregoing, for purposes of this definition, "Consolidated EBITDA" and "Consolidated Fixed Charges" shall be calculated after giving effect on a pro forma basis for the period of such calculation to: (1) the incurrence or repayment of any Indebtedness of such Person or any of its Restricted Subsidiaries (and the application of the proceeds thereof) giving rise to the need to make such calculation and any incurrence or repayment of other Indebtedness (and the application of the proceeds thereof), other than the incurrence or repayment of Indebtedness in the ordinary course of business for working capital purposes pursuant to working capital facilities, occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such incurrence or repayment, as the case may be (and the application of the proceeds thereof), occurred on the first day of the Four Quarter Period; and -7- (2) any Asset Sales or other disposition or Asset Acquisitions (including, without limitation, any Asset Acquisition giving rise to the need to make such calculation as a result of such Person or one of its Restricted Subsidiaries (including any Person who becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming or otherwise being liable for Acquired Indebtedness and also including any Consolidated EBITDA attributable to the assets which are the subject of the Asset Acquisition or Asset Sale or other disposition during the Four Quarter Period) occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such Asset Sale or other disposition or Asset Acquisition (including the incurrence, assumption or liability for any such Acquired Indebtedness) occurred on the first day of the Four Quarter Period. For purposes of this definition, whenever pro forma effect is to be given to an Asset Acquisition and the amount of income or earnings relating thereto, the pro forma calculations shall be determined in good faith by a responsible financial or accounting Officer of the Company and shall comply with the requirements of Rule 11-02 of Regulation S-X promulgated by the Commission, except that such pro forma calculations may include operating expense reductions for such period resulting from the acquisition which is being given pro forma effect that have been realized or for which the steps necessary for realization have been taken or are reasonably expected to be taken within six months following any such Asset Acquisition, including, but not limited to, the execution or termination of any contracts, the termination of any personnel or the closing (or approval by the Board of Directors of the Company of any closing) of any facility, as applicable, provided that, in either case, such adjustments are set forth in an Officers' Certificate signed by the Company's chief financial officer and another Officer which states (i) the amount of such adjustment or adjustments, (ii) that such adjustment or adjustments are based on the reasonable good faith beliefs of the Officers executing such Officers' Certificate at the time of such execution and (iii) that any related incurrence of Indebtedness is permitted pursuant to this Indenture. If such Person or any of its Restricted Subsidiaries directly or indirectly guarantees Indebtedness of a third Person, the preceding sentence shall give effect to the incurrence of such guaranteed Indebtedness as if such Person or any Restricted Subsidiary of such Person had directly incurred or otherwise assumed such guaranteed Indebtedness. Furthermore, in calculating "Consolidated Fixed Charges" for purposes of determining the denominator (but not the numerator) of this "Consolidated Fixed Charge Coverage Ratio": (1) interest on outstanding Indebtedness determined on a fluctuating basis as of the Transaction Date and which will continue to be so determined thereafter shall -8- be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on the Transaction Date; and (2) notwithstanding clause (1) above, interest on Indebtedness determined on a fluctuating basis, to the extent such interest is covered by agreements relating to Interest Swap Obligations, shall be deemed to accrue at the rate per annum resulting after giving effect to the operation of such agreements. "Consolidated Fixed Charges" means, with respect to any Person for any period, the sum, without duplication, of: (1) Consolidated Interest Expense (excluding the amortization or write-off of deferred financing costs); plus (2) the product of (x) the amount of all dividend payments on any series of Preferred Stock of such Person and, to the extent permitted under this Indenture, its Restricted Subsidiaries (other than dividends paid in Qualified Capital Stock) paid, accrued or scheduled to be paid or accrued during such period times (y) a fraction, the numerator of which is one and the denominator of which is one minus the then current effective consolidated federal, state and local income tax rate of such Person, expressed as a decimal. "Consolidated Interest Expense" means, with respect to any Person for any period, the sum of, without duplication: (1) the aggregate of the interest expense of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, including without limitation: (a) any amortization of debt discount and amortization or write-off of deferred financing costs; (b) the net costs under Interest Swap Obligations; (c) all capitalized interest; and (d) the interest portion of any deferred payment obligation; and (2) the interest component of Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Restricted Subsidiaries during such period as determined on a consolidated basis in accordance with GAAP. "Consolidated Net Income" means, with respect to any Person, for any period, the aggregate net income (or loss) of such Person and its Restricted Subsidiaries for such period on a consolidated basis, determined in accordance with GAAP; provided that there shall be excluded therefrom (without duplication): -9- (1) after-tax gains and losses from Asset Sales (without regard to the $5.0 million limitation set forth in the definition thereof) or abandonments or reserves relating thereto; (2) after-tax items classified as extraordinary or nonrecurring gains and losses; (3) the net income of any Person acquired in a "pooling of interests" transaction accrued prior to the date it becomes a Restricted Subsidiary of the referent Person or is merged or consolidated with the referent Person or any Restricted Subsidiary of the referent Person; (4) the net income (but not loss) of any Restricted Subsidiary of the referent Person to the extent that the declaration of dividends or similar distributions by that Restricted Subsidiary of that income is restricted by a contract, operation of law or otherwise, unless received; (5) the net income of any Person, other than a Restricted Subsidiary of the referent Person, except to the extent of cash dividends or distributions paid to the referent Person or to a Restricted Subsidiary of the referent Person by such Person; (6) any restoration to income of any contingency reserve, except to the extent that provision for such reserve was made out of Consolidated Net Income accrued at any time following the Issue Date; (7) income or loss attributable to discontinued operations; and (8) in the case of a successor to the referent Person by consolidation or merger or as a transferee of the referent Person's assets, any earnings of the successor corporation prior to such consolidation, merger or transfer of assets. Notwithstanding the foregoing, "Consolidated Net Income" shall be calculated without giving effect to: (i) any premiums, fees or expenses incurred in connection with the transactions; and (ii) the amortization, depreciation or non-cash charge of any amounts required or permitted by Statement of Financial Accounting Standards No. 141, "Business Combinations," and No. 142, "Goodwill and Other Intangible Assets," or any successor pronouncements of the Financial Accounting Standards Board or with respect to the impairment of the value of any long-lived assets. -10- "Consolidated Net Worth" of any Person means the consolidated stockholders' equity of such Person, determined on a consolidated basis in accordance with GAAP, less (without duplication) amounts attributable to Disqualified Capital Stock of such Person. "Consolidated Non-cash Charges" means, with respect to any Person, for any period, the aggregate depreciation, amortization and other non-cash expenses of such Person and its Restricted Subsidiaries reducing Consolidated Net Income of such Person and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP (excluding any such charges constituting an extraordinary item or loss or any such charge which requires an accrual of or a reserve for cash charges for any future period). "Corporate Trust Office of the Trustee" means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereto is located at 707 Wilshire Boulevard, 17th floor, Los Angeles, California 90017, Attention: Corporate Trust Department, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company). "Credit Agreement" means the Credit Agreement entered into on the Issue Date, among Holdings, the Company, Solvest Ltd., the lenders party thereto in their capacities as lenders thereunder and Deutsche Bank AG New York Branch, as administrative agent, The Bank of Nova Scotia and Bank of America, N.A., as co-syndication agents, and Fleet National Bank and Societe Generale, as co-documentation agents, together with the related documents thereto (including, without limitation, any guarantee agreements and security documents), in each case as such agreements may be amended (including any amendment and restatement thereof), supplemented or otherwise modified from time to time, including any agreement extending the maturity of, refinancing, replacing or otherwise restructuring (including, without limitation, increasing the amount of available borrowings thereunder or adding Restricted Subsidiaries of the Company as additional borrowers or guarantors thereunder) all or any portion of the Indebtedness under such agreement or any successor or replacement agreement or agreements and whether by the same or any other agent, lender or group of lenders. "Currency Agreement" means any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect the Company or any Restricted Subsidiary of the Company against fluctuations in currency values. "Default" means an event or condition the occurrence of which is, or with the lapse of time or the giving of notice or both would be, an Event of Default. "Depositary" means, with respect to the Notes issuable in whole or in part in global form, the Person specified in Section 2.6 hereof as the Depositary with respect to the Notes, until a successor shall have been appointed and become such pursuant to the applicable -11- provisions or this Indenture, and, thereafter, "Depositary" shall mean or include such successor. "Disqualified Capital Stock" means that portion of any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event which would constitute a Change of Control or an Asset Sale and other than an event of default as a result of the bankruptcy, insolvency or similar event of the issuer thereof contained in a security into which such Capital Stock is convertible or for which it is exchangeable), matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof (except, in each case, upon the occurrence of a Change of Control or an Asset Sale and other than an event of default as a result of the bankruptcy, insolvency or similar event of the issuer thereof contained in a security into which such Capital Stock is convertible or for which it is exchangeable), on or prior to the final maturity date of the Notes. "Domestic Restricted Subsidiary" means a Restricted Subsidiary incorporated or otherwise organized or existing under the laws of the United States, any state thereof or any territory or possession of the United States. "Equity Offering" means any public or private sale or issuance of Qualified Capital Stock of Holdings or the Company; provided that, in the event of an Equity Offering by Holdings, Holdings contributes to the capital of the Company the portion of the net cash proceeds of such Equity Offering necessary to pay the aggregate redemption price (plus accrued interest to the redemption date) of the Notes to be redeemed pursuant to Section 3.8. "Euroclear" means Morgan Guaranty Trust Company of New York, Brussels office, as operator of the Euroclear System. "Exchange Act" means the Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto. "Exchange Offer" means the offer that shall be made by the Company pursuant to the Registration Rights Agreement to exchange Series A Notes for Series B Notes. "Existing Notes" means (i) the $400.0 million in aggregate principal amount of the Company's 8.625% notes due 2009 and (ii) the $155.0 million in aggregate principal amount of the Company's 8.75% debentures due 2013. "Existing Notes Indenture" means that certain Indenture, dated as July 15, 1993, by the Company to Chemical Trust Company of California, as trustee, as the same may be amended, supplemented or modified from time to time in accordance with the terms thereof. -12- "fair market value" means, with respect to any asset or property, the price which could be negotiated in an arm's-length, free market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction. Fair market value shall be determined by the Board of Directors of the Company acting reasonably and in good faith and shall be evidenced by a Board Resolution of the Board of Directors of the Company delivered to the Trustee. "Final Memorandum" shall mean the Company's final offering memorandum dated March 17, 2003, whereby the Company offered $475,000,000 aggregate principal amount of its Series A Notes. "Foreign Restricted Subsidiary" means any Restricted Subsidiary other than a Domestic Restricted Subsidiary. "GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, which are in effect as of the Issue Date. "Guarantee" has the meaning set forth in Section 11.1. "Guarantor" means: (1) certain of the Company's Domestic Restricted Subsidiaries as of the Issue Date; and (2) each of the Company's Restricted Subsidiaries that in the future executes a supplemental indenture in which such Restricted Subsidiary agrees to be bound by the terms of this Indenture as a Guarantor; provided that any Person constituting a Guarantor as described above shall cease to constitute a Guarantor when its respective Guarantee is released in accordance with the terms of this Indenture. "Guarantor Designated Senior Debt" means (1) Indebtedness of a Guarantor under or in respect of the Credit Agreement and (2) any other Indebtedness of a Guarantor constituting Guarantor Senior Debt which, at the time of determination, has an aggregate principal amount of at least $50.0 million and is specifically designated in the instrument evidencing such Guarantor Senior Debt as "Guarantor Designated Senior Debt" by the Company. "Guarantor Senior Debt" means, with respect to any Guarantor: the principal of, premium, if any, and interest (including any interest accruing subsequent to the filing of a petition of bankruptcy at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable law) on any Indebtedness of, or guaranteed by, a Guarantor, whether outstanding on the Issue Date or thereafter created, incurred or assumed, unless, in the case of any particular Indebtedness, the instrument creating or evidencing the same or pursuant to which the same is outstanding expressly provides -13- that such Indebtedness shall not be senior in right of payment to the Guarantee of such Guarantor. Without limiting the generality of the foregoing, "Guarantor Senior Debt" shall also include the principal of, premium, if any, interest (including any interest accruing subsequent to the filing of a petition of bankruptcy at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable law) on, and all other amounts owing in respect of (including guarantees of the foregoing obligations): (x) all monetary obligations of every nature of such Guarantor under, or with respect to, the Credit Agreement, including, without limitation, obligations to pay principal, premium and interest, reimbursement obligations under letters of credit and bank guarantees, fees, expenses and indemnities (and guarantees thereof); (y) all Interest Swap Obligations (and guarantees thereof); and (z) all obligations under Currency Agreements (and guarantees thereof), in each case whether outstanding on the Issue Date or thereafter incurred. Notwithstanding the foregoing, "Guarantor Senior Debt" shall not include: (1) any Indebtedness of such Guarantor to a Subsidiary of such Guarantor; (2) Indebtedness to, or guaranteed on behalf of, any director, officer or employee of such Guarantor or any Subsidiary of such Guarantor (including, without limitation, amounts owed for compensation); (3) Indebtedness to trade creditors and other amounts incurred in connection with obtaining goods, materials or services; provided that obligations incurred pursuant to the Credit Agreement shall not be excluded pursuant to this clause (3); (4) Indebtedness represented by Disqualified Capital Stock; (5) any liability for federal, state, local or other taxes owed or owing by such Guarantor; (6) that portion of any Indebtedness incurred in violation of Section 4.9 (but, as to any such obligation, no such violation shall be deemed to exist for purposes of this clause (6) if the holder(s) of such obligation or their representative shall have received an officer's certificate (and/or a representation or warranty) from the Company to the effect that the incurrence of such Indebtedness does not (or, in the case of revolving credit indebtedness, that the incurrence of the entire committed amount thereof at the date on which the initial borrowing thereunder is made would not) violate such Section); -14- (7) with respect to any Guarantor, Indebtedness which, when incurred and without respect to any election under Section 1111(b) of Title 11, United States Code, is without recourse to such Guarantor; (8) the guarantees of the Existing Notes or the Guarantees; and (9) with respect to any Guarantor, any Indebtedness which is, by its express terms, subordinated in right of payment to any other Indebtedness of such Guarantor. "Holder" means a Person in whose name a Note is registered. "Holdings" means DHM Holding Company, Inc., a Delaware corporation and the parent of the Company. "Indebtedness" means with respect to any Person, without duplication: (1) all Obligations of such Person for borrowed money; (2) all Obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; (3) all Capitalized Lease Obligations of such Person; (4) all Obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all Obligations under any title retention agreement (but excluding trade accounts payable and other accrued liabilities arising in the ordinary course of business that are not overdue by 120 days or more or are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted and payables under the Company's grower loans program in the ordinary course of business and consistent with past practice); (5) all Obligations for the reimbursement of any obligor on any letter of credit, banker's acceptance or similar credit transaction; (6) guarantees and other contingent obligations in respect of Indebtedness referred to in clauses (1) through (5) above and clause (8) below; (7) all Obligations of any other Person of the type referred to in clauses (1) through (6) which are secured by any Lien on any property or asset of such Person, the amount of such Obligation being deemed to be the lesser of the fair market value of such property or asset or the amount of the Obligation so secured; -15- (8) all Obligations under Currency Agreements and Interest Swap Obligations of such Person; and (9) all Disqualified Capital Stock issued by such Person with the amount of Indebtedness represented by such Disqualified Capital Stock being equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any. For purposes hereof, the "maximum fixed repurchase price" of any Disqualified Capital Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Capital Stock as if such Disqualified Capital Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the fair market value of such Disqualified Capital Stock, such fair market value shall be determined reasonably and in good faith by the Board of Directors of the issuer of such Disqualified Capital Stock. "Indenture" means this Indenture, as amended or supplemented from time to time. "Independent Financial Advisor" means a firm: (1) which does not, and whose directors, officers and employees or Affiliates do not, have a direct or indirect financial interest in the Company; and (2) which, in the judgment of the Board of Directors of the Company, is otherwise independent and qualified to perform the task for which it is to be engaged. "Initial Purchasers" means Deutsche Bank Securities Inc., Banc of America Securities LLC, Scotia Capital (USA) Inc., Fleet Securities, Inc., SG Cowen Securities Corporation and BMO Nesbitt Burns Corp. "Interest Swap Obligations" means the obligations of any Person pursuant to any arrangement with any other Person, whereby, directly or indirectly, such Person is entitled to receive from time to time periodic payments calculated by applying either a floating or a fixed rate of interest on a stated notional amount in exchange for periodic payments made by such other Person calculated by applying a fixed or a floating rate of interest on the same notional amount and shall also include, without limitation, interest rate swaps, caps, floors, collars and similar agreements. "Investment" means, with respect to any Person, any direct or indirect loan or other extension of credit (including, without limitation, a guarantee) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition by such Person of any Capital Stock, bonds, notes, debentures or other securities or evidences of Indebtedness issued by, any other Person. "Investment" shall exclude extensions of trade credit by the Company and its Restricted Subsidiaries on commercially reasonable terms in accordance -16- with normal trade practices of the Company or such Restricted Subsidiaries, as the case may be. If the Company or any Restricted Subsidiary of the Company sells or otherwise disposes of any Common Stock of any direct or indirect Restricted Subsidiary of the Company such that, after giving effect to any such sale or disposition, the Company no longer owns, directly or indirectly, 50% of the outstanding Common Stock of such Restricted Subsidiary, the Company shall be deemed to have made an Investment on the date of any such sale or disposition equal to the fair market value of the Common Stock of such Restricted Subsidiary not sold or disposed of. "Issue Date" means March 28, 2003, the date of original issuance of the Notes. "Lien" means any lien, mortgage, deed of trust, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof and any agreement to give any security interest). "Net Cash Proceeds" means, with respect to any Asset Sale, the proceeds in the form of cash or Cash Equivalents including payments in respect of deferred payment obligations when received in the form of cash or Cash Equivalents (other than the portion of any such deferred payment constituting interest) received by the Company or any of its Restricted Subsidiaries from such Asset Sale net of: (1) reasonable out-of-pocket expenses and fees relating to such Asset Sale (including, without limitation, legal, accounting and investment banking fees and sales commissions); (2) taxes paid or payable after taking into account any reduction in consolidated tax liability due to available tax credits or deductions and any tax sharing arrangements; (3) repayment of Indebtedness that is secured by the property or assets that are the subject of such Asset Sale or that is required, pursuant to an agreement or instrument existing on the Issue Date, to be repaid from the proceeds of such Asset Sale other than pursuant to this Indenture; and (4) appropriate amounts to be provided by the Company or any Restricted Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against any liabilities associated with such Asset Sale and retained by the Company or any Restricted Subsidiary, as the case may be, after such Asset Sale, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale. -17- "Note Custodian" means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto. "Notes" means the Series A Notes and the Series B Notes, if any, that are issued under this Indenture, as amended or supplemented from time to time. "Obligations" means all obligations for principal, premium, interest (including any interest accruing subsequent to the filing of a petition of bankruptcy at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable law), penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness. "Officer" means the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the President, any Vice President, the Treasurer or the Secretary of the Company. "Officers' Certificate" means a certificate signed by two officers of the Company, at least one of whom shall be the principal executive officer or principal financial officer of the Company, and delivered to the Trustee. "Opinion of Counsel" means an opinion from legal counsel who is reasonably acceptable to the Trustee that meets the requirements of Sections 13.4 and 13.5 hereof. The counsel may be an employee of or counsel to the Company, any Subsidiary of the Company or the Trustee. "Pari Passu Debt" means any Indebtedness of the Company or any Guarantor that ranks pari passu in right of payment with the Notes or such Guarantee, as applicable. "Permitted Holders" means (i) David H. Murdock, his estate, spouse, heirs, ancestors, lineal descendants, legatees, legal representatives or the trustee of a bona fide trust of which one or more of the foregoing are the principal beneficiaries or grantors thereof and (ii) any entity controlled, directly or indirectly, by any Persons referred to in the preceding clause (i), whether through the ownership of voting securities, by contract or otherwise. "Permitted Indebtedness" means, without duplication, each of the following: (1) Indebtedness under the Notes or the Exchange Notes (as defined in the Registration Rights Agreement) in an aggregate principal amount not to exceed $475.0 million and the Guarantees thereof; (2) Indebtedness incurred pursuant to the Credit Agreement in an aggregate principal amount at any time outstanding not to exceed $1,125.0 million less the amount of all repayments of terms loans and permanent commitment reductions in the -18- revolving credit portion of the Credit Agreement actually made with Net Cash Proceeds of Asset Sales applied thereto as required by Section 4.10; (3) other Indebtedness of the Company and its Restricted Subsidiaries outstanding on the Issue Date (including the Existing Notes and the guarantees thereof and any "put" or similar rights of minority holders of Restricted Subsidiaries in existence as of the Issue Date) reduced by the amount of any scheduled amortization payments or mandatory prepayments when actually paid or permanent reductions thereon; (4) Interest Swap Obligations of the Company or any Restricted Subsidiary of the Company covering Indebtedness of the Company or any of its Restricted Subsidiaries; provided, however, that such Interest Swap Obligations are entered into to protect the Company and its Restricted Subsidiaries from fluctuations in interest rates on their outstanding Indebtedness to the extent the notional principal amount of any such Interest Swap Obligation does not, at the time of the initial incurrence thereof, exceed the principal amount of the Indebtedness to which such Interest Swap Obligation relates; (5) (A) Indebtedness under Currency Agreements; provided that in the case of Currency Agreements which relate to Indebtedness, such Currency Agreements do not increase the Indebtedness of the Company and its Restricted Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder and (B) Indebtedness under Commodities Agreements; (6) Indebtedness of a Restricted Subsidiary of the Company to the Company or to a Wholly Owned Restricted Subsidiary of the Company for so long as such Indebtedness is held by the Company or a Wholly Owned Restricted Subsidiary of the Company or the holder of a Lien permitted under this Indenture, in each case subject to no Lien held by a Person other than the Company or a Wholly Owned Restricted Subsidiary of the Company or the holder of a Lien permitted under this Indenture; provided that if as of any date any Person other than the Company or a Wholly Owned Restricted Subsidiary of the Company or the holder of a Lien permitted under this Indenture owns or holds any such Indebtedness or holds a Lien in respect of such Indebtedness, such date shall be deemed the incurrence of Indebtedness not constituting Permitted Indebtedness under this clause (6) by the issuer of such Indebtedness; (7) (A) Indebtedness of the Company to a Wholly Owned Restricted Subsidiary of the Company for so long as such Indebtedness is held by a Wholly Owned Restricted Subsidiary of the Company or the holder of a Lien permitted under this Indenture, in each case subject to no Lien other than a Lien permitted under this Indenture; provided that (a) any Indebtedness of the Company to any Wholly Owned Restricted Subsidiary of the Company that is not a Guarantor is unsecured and subordi- -19- nated, pursuant to a written agreement, to the Company's obligations under this Indenture and the Notes and (b) if as of any date any Person other than a Wholly Owned Restricted Subsidiary of the Company or the holder of a Lien permitted under this Indenture owns or holds any such Indebtedness or holds a Lien in respect of such Indebtedness, such date shall be deemed the incurrence of Indebtedness not constituting Permitted Indebtedness under this clause (7) by the Company and (B) Indebtedness of the Company or any of its Restricted Subsidiaries to Saba Trading AB or any other Restricted Subsidiary of the Company that is not a Wholly Owned Restricted Subsidiary of the Company in the ordinary course of business consistent with past practice; (8) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five business days of incurrence; (9) Indebtedness of the Company or any of its Restricted Subsidiaries in respect of performance bonds, bankers' acceptances, workers' compensation claims, surety or appeal bonds, payment obligations in connection with self-insurance or similar obligations, completion or performance guarantees or standby letters of credit issued for the purpose of supporting such obligations and bank overdrafts (and letters of credit in respect thereof) in the ordinary course of business; (10) Indebtedness represented by Capitalized Lease Obligations, mortgage financings and Purchase Money Indebtedness of the Company and its Restricted Subsidiaries incurred in the ordinary course of business not to exceed $25.0 million at any one time outstanding; (11) Refinancing Indebtedness; (12) Indebtedness represented by guarantees by the Company or its Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under this Indenture; (13) Indebtedness of the Company or any Restricted Subsidiary consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets or the Capital Stock of Subsidiaries; (14) guarantees furnished by the Company or its Restricted Subsidiaries in the ordinary course of business of Indebtedness of another Person in an aggregate amount not to exceed $25.0 million at any one time outstanding; -20- (15) Indebtedness incurred under commercial letters of credit issued for the account of the Company or any of its Restricted Subsidiaries in the ordinary course of business (and not for the purpose of, directly or indirectly, incurring Indebtedness or providing credit support or a similar arrangement in respect of Indebtedness), provided that any drawing under any such letter of credit is reimbursed in full within seven days; (16) Indebtedness of the Company or any of its Restricted Subsidiaries relating to any "earn-out" obligations payable in connection with any acquisition made by the Company or any Restricted Subsidiary not prohibited by this Indenture; (17) Indebtedness of Foreign Restricted Subsidiaries in an aggregate principal amount not to exceed $50.0 million at any one time outstanding; (18) Indebtedness of Foreign Restricted Subsidiaries (and any guarantee thereof by the Company) incurred in connection with grower loan programs in an aggregate principal amount not to exceed $50.0 million at any one time outstanding; (19) without duplication, Indebtedness of the Company or any of its Restricted Subsidiaries under letters of credit and bank guarantees required by governmental laws, orders and regulations which letters of credit will be backstopped by letters of credit under the Credit Agreement; (20) Indebtedness of the Company or any of its Restricted Subsidiaries incurred in connection with vehicle inventory loans in an aggregate principal amount not to exceed $5.0 million at any one time outstanding; (21) Indebtedness of the Company and its Restricted Subsidiaries representing Obligations in existence on the Issue Date that become Indebtedness after the Issue Date as a result of the implementation of FASB Interpretation No. 46, "Consolidation of Variable Interest Entities"; and (22) additional Indebtedness of the Company and its Restricted Subsidiaries in an aggregate principal amount not to exceed $35.0 million at any one time outstanding (which amount may, but need not, be incurred in whole or in part under the Credit Agreement). For purposes of determining compliance with Section 4.9, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (1) through (22) above or is entitled to be incurred pursuant to the Consolidated Fixed Charge Coverage Ratio provisions of Section 4.9 hereof, the Company shall, in its sole discretion, classify (or from time to time may reclassify) such item of Indebtedness in any manner that complies with this definition and such item of Indebtedness -21- will be treated as having been incurred pursuant to only one of such categories. Accrual of interest, accretion or amortization of original issue discount, a change in the amount of Indebtedness due solely to fluctuations in the exchange rates of currencies, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Capital Stock in the form of additional shares of the same class of Disqualified Capital Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Capital Stock for purposes of Section 4.9 hereof. "Permitted Investments" means: (1) Investments by the Company or any Restricted Subsidiary of the Company in any Person that is or will become immediately after such Investment a Restricted Subsidiary of the Company or that will merge or consolidate into the Company or a Restricted Subsidiary of the Company; (2) Investments in the Company by any Restricted Subsidiary of the Company; provided that any Indebtedness (other than Indebtedness to Saba Trading AB or any other Restricted Subsidiary of the Company that is not a Wholly Owned Restricted Subsidiary of the Company in the ordinary course of business consistent with past practice) evidencing such Investment and held by a Restricted Subsidiary that is not a Guarantor is unsecured and subordinated, pursuant to a written agreement, to the Company's obligations under the Notes and this Indenture; (3) Investments in cash and Cash Equivalents; (4) loans to employees, directors and officers of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of $5.0 million at any one time outstanding; (5) Obligations under Currency Agreements, Interest Swap Obligations and Commodities Agreements entered into in the ordinary course of the Company's or its Restricted Subsidiaries' businesses and not for speculative purposes and otherwise in compliance with this Indenture; (6) additional Investments not to exceed $50.0 million at any one time outstanding; (7) Investments in securities of trade creditors, licensors, licensees or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers or in good faith settlement of delinquent obligations of such trade creditors or customers; -22- (8) Investments made by the Company or its Restricted Subsidiaries as a result of consideration received in connection with an Asset Sale made in compliance with Section 4.10, whether or not such consideration is equal to or greater than $5.0 million; (9) Investments represented by guarantees that are otherwise permitted under this Indenture; (10) Investments the payment for which is Qualified Capital Stock of the Company; (11) Investments resulting from the creation of Liens on the assets of the Company or any of its Restricted Subsidiaries in compliance with Section 4.12; (12) Investments by the Company or any Restricted Subsidiary in connection with grower loan programs in an amount not to exceed $75.0 million at any one time outstanding; (13) Investments arising as a result of the exercise of any "put" or similar rights of minority holders of Restricted Subsidiaries or "call" or similar rights of the Company in existence as of the Issue Date; and (14) advances to employees, directors and officers of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes. "Permitted Liens" means the following types of Liens: (1) Liens existing as of the Issue Date to the extent and in the manner such Liens are in effect on the Issue Date; (2) Liens securing Indebtedness and any other Obligations under the Credit Agreement; (3) Liens securing Guarantor Senior Debt; (4) Liens securing the Notes and the Guarantees; (5) Liens of the Company or a Restricted Subsidiary of the Company on assets of any Restricted Subsidiary of the Company; (6) Liens securing Refinancing Indebtedness which is incurred to Refinance any Indebtedness which has been secured by a Lien permitted under this Indenture and which has been incurred in accordance with the provisions of this Indenture; -23- provided, however, that such Liens: (i) are no less favorable to the Holders in any material respect and are not more favorable to the lienholders in any material respect with respect to such Liens than the Liens in respect of the Indebtedness being Refinanced; and (ii) do not extend to or cover any property or assets of the Company or any of its Restricted Subsidiaries not securing the Indebtedness so Refinanced; (7) Liens for taxes, assessments or governmental charges or claims either (a) not delinquent or (b) contested in good faith by appropriate proceedings and as to which the Company or its Restricted Subsidiaries shall have set aside on their books such reserves as may be required pursuant to GAAP; (8) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers, materialmen, repairmen, maritime and other Liens imposed by law incurred in the ordinary course of business for sums not yet delinquent or being contested in good faith, if such reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made in respect thereof; (9) Liens incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security, including any Lien securing letters of credit issued in the ordinary course of business consistent with past practice in connection therewith, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations or to secure or which results from required payments or deposits in connection with litigation (in each case, exclusive of obligations for the payment of borrowed money); (10) judgment Liens (other than with respect to judgments of a size not sufficient to cause an Event of Default under this Indenture) so long as such Lien is adequately bonded and any appropriate legal proceedings which may have been duly initiated for the review of such judgment shall not have been finally terminated or the period within which such proceedings may be initiated shall not have expired; (11) easements, rights-of-way, zoning restrictions and other similar charges or encumbrances in respect of real property not interfering in any material respect with the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries; (12) any interest or title of a lessor under any Capitalized Lease Obligation permitted to be incurred under this Indenture; provided that such Liens do not extend to any property or asset which is not leased property subject to such Capitalized Lease Obligation; -24- (13) Liens securing Purchase Money Indebtedness incurred in the ordinary course of business; provided, however, that (a) such Purchase Money Indebtedness shall not exceed the purchase price or other cost of such property or equipment plus the amount of reasonable fees and expenses incurred in connection with such financing and shall not be secured by any property or equipment of the Company or any Restricted Subsidiary of the Company other than the property and equipment so acquired and (b) the Lien securing such Purchase Money Indebtedness shall be created within 120 days of such acquisition; (14) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person's obligations in respect of bankers' acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods; (15) Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other property relating to such letters of credit and products and proceeds thereof; (16) Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual or warranty requirements of the Company or any of its Restricted Subsidiaries, including rights of offset and set-off; (17) Liens securing Interest Swap Obligations which Interest Swap Obligations relate to Indebtedness that is otherwise permitted pursuant to clause (4) of the definition of "Permitted Indebtedness"; (18) Liens securing Indebtedness under Currency Agreements and Commodities Agreements permitted to be incurred pursuant to clause (5) of the definition of "Permitted Indebtedness"; (19) Liens securing Acquired Indebtedness incurred in accordance with Section 4.9 hereof; provided that: (a) such Liens secured such Acquired Indebtedness at the time of and prior to the incurrence of such Acquired Indebtedness by the Company or a Restricted Subsidiary of the Company and were not granted in connection with, or in anticipation of, the incurrence of such Acquired Indebtedness by the Company or a Restricted Subsidiary of the Company; and (b) such Liens do not extend to or cover any property or assets of the Company or of any of its Restricted Subsidiaries other than the property or assets that secured the Acquired Indebtedness prior to the time such Indebtedness became Acquired Indebtedness of the Company or a Restricted Subsidiary -25- of the Company and are no more favorable to the lienholders than those securing the Acquired Indebtedness prior to the incurrence of such Acquired Indebtedness by the Company or a Restricted Subsidiary of the Company; (20) Liens on assets of a Restricted Subsidiary of the Company that is not a Guarantor to secure Indebtedness of such Restricted Subsidiary that is otherwise permitted under this Indenture; (21) leases, subleases, licenses and sublicenses granted to others that do not materially interfere with the ordinary course of business of the Company and its Restricted Subsidiaries; (22) bankers' Liens, rights of setoff and similar Liens with respect to cash and Cash Equivalents on deposit in one or more bank accounts in the ordinary course of business; (23) Liens arising from filing Uniform Commercial Code financing statements regarding leases; and (24) Liens in favor of customs and revenue authorities arising as a matter of law to secure payments of custom duties in connection with the importation of goods. "Person" means an individual, partnership, corporation, limited liability company, unincorporated organization, trust or joint venture, or any entity similar to any of the foregoing organized under the laws of other countries, or a governmental agency or political subdivision thereof. "PORTAL Market" means the Portal Market operated by the National Association of Securities Dealers, Inc. or any successor thereto. "Preferred Stock" of any Person means any Capital Stock of such Person that has preferential rights to any other Capital Stock of such Person with respect to dividends or redemptions or upon liquidation. "Purchase Date" means, with respect to any Note to be repurchased, the date fixed for such repurchase by or pursuant to this Indenture. "Purchase Money Indebtedness" means Indebtedness of the Company and its Restricted Subsidiaries incurred in the normal course of business for the purpose of financing all or any part of the purchase price, or the cost of installation, construction or improvement, of property or equipment. -26- "Purchase Price" means the amount payable for the repurchase of any Note on a Purchase Date, exclusive of accrued and unpaid interest and Additional Interest (if any) thereon to the Purchase Date, unless otherwise specifically provided. "QIB" means a qualified institutional buyer as defined in Rule 144A under the Securities Act. "Qualified Capital Stock" means any Capital Stock that is not Disqualified Capital Stock. "Redemption Date" means, with respect to any Note to be redeemed, the date fixed for such redemption by or pursuant to this Indenture. "Redemption Price" means the amount payable for the redemption of any Note on a Redemption Date, exclusive of' accrued and unpaid interest and Additional Interest (if any) thereon to the Redemption Date, unless otherwise specifically provided. "Refinance" means, in respect of any security or Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue a security or Indebtedness in exchange or replacement for, such security or Indebtedness in whole or in part. "Refinanced" and Refinancing" shall have correlative meanings. "Refinancing Indebtedness" means any Refinancing by the Company or any Restricted Subsidiary of the Company of Indebtedness incurred in accordance with Section 4.9 (other than pursuant to clauses (2), (4), (5), (6), (7), (8), (9), (10), (12), (13) through (20) and (22) of the definition of "Permitted Indebtedness"), in each case that does not: (1) result in an increase in the aggregate principal amount of Indebtedness of such Person as of the date of such proposed Refinancing above the sum of (i) the aggregate principal amount of such Indebtedness, plus (ii) the accrued interest on and the amount of any premium required to be paid under the terms of the instrument governing such Indebtedness, plus (iii) the amount of reasonable expenses incurred by the Company in connection with such Refinancing; or (2) create Indebtedness with: (a) a Weighted Average Life to Maturity that is less than the Weighted Average Life to Maturity of the Indebtedness being Refinanced; or (b) a final maturity earlier than the final maturity of the Indebtedness being Refinanced; provided that (x) if such Indebtedness being Refinanced is Indebtedness solely of the Company (and is not otherwise guaranteed by a Restricted Subsidiary of the Company), then such Refinancing Indebtedness shall be Indebtedness solely of the Company and (y) if such Indebtedness being Refinanced is subordinate or junior to the Notes or the Guarantees, then such -27- Refinancing Indebtedness shall be subordinate to the Notes or the Guarantees, as the case may be, at least to the same extent and in the same manner as the Indebtedness being Refinanced. "Registration Rights Agreement" means the registration rights agreement dated as of the Issue Date among the Company, the Guarantors and the Initial Purchasers. "Regulation S" means Regulation S as promulgated under the Securities Act. "Responsible Officer" shall mean, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person's knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture. "Representative" means the indenture trustee or other trustee, agent or representative in respect of any Guarantor Designated Senior Debt; provided that if, and for so long as, any Guarantor Designated Senior Debt lacks such a representative, then the Representative for such Guarantor Designated Senior Debt shall at all times constitute the holders of a majority in outstanding principal amount of such Guarantor Designated Senior Debt. "Restricted Subsidiary" of any Person means any Subsidiary of such Person which at the time of determination is not an Unrestricted Subsidiary. "Rule 144A" means Rule 144A promulgated under the Securities Act. "Sale and Leaseback Transaction" means any direct or indirect arrangement with any Person or to which any such Person is a party, providing for the leasing to the Company or a Restricted Subsidiary of any property, whether owned by the Company or any Restricted Subsidiary at the Issue Date or later acquired, which has been or is to be sold or transferred by the Company or such Restricted Subsidiary to such Person or to any other Person from whom funds have been or are to be advanced by such Person on the security of such property. "Securities Act" means the Securities Act of 1933, as amended, or any successor statute or statutes thereto. "Series A Notes" means the Company's 8-7/8% Senior Notes due 2011. "Series B Notes" means notes issued by the Company hereunder containing terms identical to the Series A Notes (except that (i) interest thereon shall accrue from the last date on which interest was paid on the Series A Notes or, if no such interest has been paid, -28- from the date of original issuance, (ii) the legend or legends relating to transferability and other related matters set forth on the Series A Notes, including the text referred to in footnote 2 of Exhibit A hereto, shall be removed or appropriately altered, and (iii) as otherwise set forth herein), to be offered to Holders of Series A Notes in exchange for Series B Notes pursuant to the Exchange Offer or any exchange offer specified in any registration rights agreement relating to the Additional Notes or to be offered in connection with any issuance of Additional Notes pursuant to a registration statement filed pursuant to the Securities Act. "Significant Subsidiary", with respect to any Person, means any Restricted Subsidiary of such Person that satisfies the criteria for a "significant subsidiary" set forth in Rule 1-02(w) of Regulation S-X under the Exchange Act. "Subordinated Indebtedness" means Indebtedness of the Company or any Guarantor that is subordinate or junior in right of payment to the Notes or the Guarantee of such Guarantor, as the case may be. "Subsidiary", with respect to any Person, means: (1) any corporation, association or other business entity of which the outstanding Capital Stock having at least a majority of the votes entitled to be cast in the election of directors, managers or trustees of such corporation, association or other business entity under ordinary circumstances shall at the time be owned, directly or indirectly, by such Person and its Subsidiaries; or (2) any partnership (a) the sole general partner or the managing partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are such Person and its Subsidiaries. "TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date on which this Indenture is qualified under the TIA; provided that in the event the Trust Indenture Act of 1939 is amended after such date, "TIA" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. "Transfer Restricted Security" means a Note that is a restricted security as defined in Rule 144(a)(3) under the Securities Act. "Trustee" means the party named as such above until a successor replaces it in accordance with the applicable provisions of this Indenture, and thereafter means the successor serving hereunder. -29- "Unrestricted Subsidiary" of any Person means: (1) any Subsidiary of such Person that at the time of determination shall be or continue to be designated an Unrestricted Subsidiary by the Board of Directors of such Person in the manner provided below; and (2) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary (including any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property of, the Company or any other Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so designated; provided that: (1) the Company certifies to the Trustee that such designation complies with Section 4.7 hereof; and (2) each Subsidiary to be so designated and each of its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Company or any of its Restricted Subsidiaries. For purposes of making the determination of whether any such designation of a Subsidiary as an Unrestricted Subsidiary complies with Section 4.7 hereof, the portion of the fair market value of the net assets of such Subsidiary of the Company at the time that such Subsidiary is designated as an Unrestricted Subsidiary that is represented by the interest of the Company and its Restricted Subsidiaries in such Subsidiary, in each case as determined in good faith by the Board of Directors of the Company, shall be deemed to be an Investment. Such designation will be permitted only if such Investment would be permitted at such time under Section 4.7 hereof. The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary only if: (1) immediately after giving effect to such designation, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.9(a) hereof; and (2) immediately before and immediately after giving effect to such designation, no Default or Event of Default shall have occurred and be continuing. -30- Any such designation by the Board of Directors shall be evidenced to the Trustee by promptly filing with the Trustee a copy of the Board Resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing provisions. "U.S. Government Obligations" shall mean securities which are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligations or a specific payment of interest on or principal of any such U.S. Government Obligations held by such custodian for the account of the holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligations or the specific payment of interest on or principal of the U.S. Government Obligations evidenced by such depository receipt. "U.S. Person" means any U.S. person as defined in Regulation S. "Weighted Average Life to Maturity" means, when applied to any Indebtedness at any date, the number of years obtained by dividing (a) the then outstanding aggregate principal amount of such Indebtedness into (b) the sum of the total of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) which will elapse between such date and the making of such payment. "Wholly Owned Restricted Subsidiary" of any Person means any Wholly Owned Subsidiary of such Person which at the time of determination is a Restricted Subsidiary of such Person. "Wholly Owned Subsidiary" of any Person means any Subsidiary of such Person of which all the outstanding voting securities (other than in the case of a foreign Subsidiary, directors' qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law) are owned by such Person or any Wholly Owned Subsidiary of such Person. -31- Section 1.2. Other Definitions.

Term Defined in Section ---- ------------------ "Acceleration Notice".............................. 6.2 "Affiliate Transaction"............................ 4.11 "Agent Members".................................... 2.6 "Certificated Notes"............................... 2.1 "Change of Control Offer".......................... 4.15 "Change of Control Offer Period"................... 3.9 "Covenant Defeasance".............................. 8.3 "Event of Default"................................. 6.1 "Foreign Person"................................... 2.6 "Global Notes"..................................... 2.1 "incur"............................................ 4.9 "Institutional Accredited Investors"............... 2.1 "Legal Defeasance"................................. 8.2 "Net Proceeds Offer"............................... 4.10 "Net Proceeds Offers Amount"....................... 4.10 "Net Proceeds Offer Payment Date................... 4.10 "Net Proceeds Offers Trigger Date"................. 4.10 "Non-payment Default............................... 10.2 "Offshore Certificated Notes"...................... 2.1 "Optional Redemption".............................. 3.7 "Paying Agent"..................................... 2.3 "Payment Blockage Notice........................... 10.2 "Payment Blockage Period........................... 10.2 "Payment Default".................................. 10.2 "Permanent Regulation S Global Note"............... 2.1 "Private Placement Legend"......................... 2.6 "Registrar"........................................ 2.3 "Regulation S Global Note"......................... 2.1 "Restricted Payment"............................... 4.7 "Rule 144A Global Note"............................ 2.1 "Special Redemption"............................... 3.8 "Surviving Entity"................................. 5.1 "Temporary Regulation S Global Note"............... 2.1 "U.S. Certificated Notes".......................... 2.1

-32- Section 1.3. Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings: "indenture securities" means the Notes; "indenture security holder" means a Holder; "indenture to be qualified" means this Indenture; "indenture trustee" or "institutional trustee" means the Trustee; "obligor" on the Notes means the Company and any successor obligor upon the Notes. All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule under the TIA have the meanings so assigned to them. Section 1.4. Rules of Construction. Unless the context otherwise requires: (a) a term has the meaning assigned to it; (b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (c) "or" is not exclusive; (d) words in the singular include the plural, and in the plural include the singular; (e) provisions apply to successive events and transactions; and (f) references to sections of or rules under the Securities Act, the Exchange Act and the TIA shall be deemed to include substitute, replacement and successor sections or rules adopted by the Commission from time to time. -33- Section 1.5. Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 7.1) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him or her the execution thereof. Where such execution is by an officer of a corporation or a member of a partnership, on behalf of such corporation or partnership, such certificate or affidavit shall also constitute sufficient proof of his or her authority. (c) The ownership of Notes shall be proved by the register maintained by the Registrar. (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Note. ARTICLE II. THE NOTES Section 2.1. Form and Dating. The Series A Notes and the Trustee's certificate of authentication relating thereto shall be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage in addition to those set forth in Exhibit A hereto. The Series B Notes shall be substantially in the form of Exhibit B hereto. The notation on each Note relating to the Guarantees shall be substantially in the form -34- set forth on Exhibit C hereto. Each Note shall be dated the date of its authentication. The Notes shall be in denominations of $1,000 and integral multiples thereof. The terms and provisions contained in the Notes and Guarantees shall constitute, and are hereby expressly made, a part of this Indenture and the Company, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. Notes offered and sold in reliance on Rule 144A shall be issued initially in the form of a single permanent global Note in registered form, substantially in the form set forth in Exhibit A (the "Rule 144A Global Note"), deposited with the Trustee, as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided and shall bear the legend set forth in Section 2.6(h). The aggregate principal amount of the Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary or its nominee, as hereinafter provided. Notes offered and sold in offshore transactions in reliance on Regulation S shall be issued initially in the form of a single temporary global Note in registered form, substantially in the form set forth in Exhibit A (the "Temporary Regulation S Global Note"), deposited with the Trustee, as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided and shall bear the legend set forth in Section 2.6(h). At any time following 40 days after the later of the commencement of the offering of the Notes and the Issue Date, upon receipt by the Trustee and the Company of a duly executed certificate substantially in the form of Exhibit D(1) hereto, a single permanent Global Note in registered form substantially in the form set forth in Exhibit A (the "Permanent Regulation S Global Note," and together with the Temporary Regulation S Global Note, the "Regulation S Global Note") duly executed by the Company and authenticated by the Trustee as hereinafter provided shall be deposited with the Trustee, as custodian for the Depositary, and the Registrar shall reflect on its books and records the date and a decrease in the principal amount of the Regulation S Global Note in an amount equal to the principal amount of the beneficial interest in the Regulation S Global Note transferred. Notes offered and sold to institutional accredited investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) ("Institutional Accredited Investors") shall be issued in the form of permanent U.S. Certificated Notes in registered form in substantially the form set forth in Exhibit A (the "U.S. Certificated Notes"). Notes issued pursuant to Section 2.6 in exchange for interests in the Rule 144A Global Note or the Regulation S Global Note shall be in the form of permanent Certificated Notes in registered form substantially in the form set forth in Exhibit A (the "Offshore Certificated Notes"). -35- The Offshore Certificated Notes and U.S. Certificated Notes are sometimes collectively herein referred to as the "Certificated Notes." The Rule 144A Global Note and the Regulation S Global Note are sometimes referred to herein as the "Global Notes." Section 2.2. Execution and Authentication. Two Officers of the Company shall sign the Notes for the Company by manual or facsimile signature. If an Officer whose signature is on a Note was an Officer at the time of such execution but no longer holds that office or position at the time a Note is authenticated, the Note shall nevertheless be valid. Each Guarantor shall execute a Guarantee in the manner set forth in Section 11.7. A Note shall not be valid until authenticated by the manual signature of the Trustee. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture. The Trustee, upon a written order of the Company signed by two Officers of the Company, together with the other documents required by Sections 13.4 and 13.5 hereof, shall authenticate (i) Series A Notes for original issue on the Issue Date in the aggregate principal amount not to exceed $475,000,000 and (ii) subject to Section 4.9, Additional Notes. The Trustee, upon written order of the Company signed by two Officers of the Company, together with the other documents required by Sections 13.4 and 13.5 hereof, shall authenticate Series B Notes; provided that such Series B Notes shall be issuable only upon the valid surrender for cancellation of Series A Notes of a like aggregate principal amount in accordance with the Exchange Offer or an exchange offer specified in any registration rights agreement relating to the Additional Notes or to be offered in connection with any issuance of Additional Notes pursuant to a registration statement filed pursuant to the Securities Act. Such written order of the Company shall specify the amount of Notes to be authenticated and the date on which the original issue of Notes is to be authenticated. Any Additional Notes shall be part of the same issue as the Notes being issued on the Issue Date and will vote on all matters as one class with the Notes being issued on the Issue Date, including, without limitation, waivers, amendments, redemptions, Change of Control Offers and Net Proceeds Offers. For the purposes of this Indenture, except for Section 4.9 hereof, references to the Notes include Additional Notes, if any. The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. Unless otherwise provided in the appointment, an authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or with any Affiliate of the Company. -36- Section 2.3. Registrar and Paying Agent. The Company shall maintain an office or agency where Notes may be presented or surrendered for registration of transfer or for exchange ("Registrar") and an office or agency where Notes may be presented for payment ("Paying Agent"). The Registrar shall keep a register of the Notes and of their transfer and exchange. At the option of the Company, payment of interest and Additional Interest may be made by check mailed to the Holders at their addresses set forth in the register of Holders, provided that payment by wire transfer of immediately available funds will be required with respect to principal, Redemption Price and Purchase Price of, and interest and Additional Interest (if any) on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Trustee or the Paying Agent. The Company may appoint one or more co-registrars and one or more additional paying agents. The term "Registrar" includes any co-registrar and the term "Paying Agent" includes any additional paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company shall notify the Trustee in writing of the name and address of any Paying Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company may act as Paying Agent or Registrar. The Depositary shall, by acceptance of a Global Note, agree that transfers of beneficial interests in such Global Note may be effected only through a book-entry system maintained by the Depositary (or its agent), and that ownership of a beneficial interest in the Note shall be required to be reflected in a book entry. The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act as Note Custodian with respect to the Global Notes, until such time as the Trustee has resigned or a successor has been appointed. Section 2.4. Paying Agents to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that such the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal and of any premium, if any, interest and Additional Interest, if any, on the Notes, and shall notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and account for any money disbursed. Upon payment over to the Trustee, the Paying Agent (if other than the Company) shall have no further liability for the money. If the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the Notes. -37- Section 2.5. Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the Company shall furnish or cause the Registrar to furnish to the Trustee at least five Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes, and the Company shall otherwise comply with TIA Section 312(a). Section 2.6. Transfer and Exchange. (a) Transfer and Exchange Generally: Book Entry Provisions. Upon surrender for registration of transfer of any Note to the Registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.6, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture. Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate principal amount, upon surrender of the Notes to be exchanged at any such office or agency maintained by the Company pursuant to Section 4.2 hereof. Whenever any Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes which the Holder making the exchange is entitled to receive bearing registration numbers not contemporaneously outstanding. All Notes presented or surrendered for registration of transfer or exchange shall be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Registrar, and the Notes shall be duly executed by the Holder thereof or his attorney duly authorized in writing. Except as otherwise provided in this Indenture, and in addition to the requirements set forth in the legend referred to in Section 2.6(h)(i) below, in connection with any transfer of Transfer Restricted Securities any request for transfer shall be accompanied by a certification to the Trustee relating to the manner of such transfer substantially in the form of Exhibit D(2) hereto. (b) Book-Entry Provisions for the Global Notes. The Rule 144A Global Note and Regulation S Global Note initially shall (i) be registered in the name of the Depositary or the nominee of such Depositary, (ii) be delivered to the Trustee as custodian for the Depositary and (iii) bear legends as set forth in Section 2.6(h). Members of, or participants in, the Depositary ("Agent Members") shall have no rights under this Indenture with respect to any Rule 144A Global Note or Regulation S Global Note, as the case may be, held on their behalf by the Depositary, or the Trustee as its -38- custodian, or under the Rule 144A Global Note or Regulation S Global Note, as the case may be, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of Rule 144A Global Note or Regulation S Global Note, as the case may be, for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a holder of any Note. Transfers of the Rule 144A Global Note and the Regulation S Global Note shall be limited to transfers of such Rule 144A Global Note or Regulation S Global Note in whole, but not in part, to the Depositary, its successors or their respective nominees. Beneficial interests in the Rule 144A Global Note and the Regulation S Global Note may be transferred in accordance with the applicable rules and procedures of the Depositary and the provisions of this Section 2.6. The registration of transfer and exchange of beneficial interests in the Global Note, which does not involve the issuance of a Certificated Note, shall be effected through the Depositary, in accordance with this Indenture (including the restrictions on transfer set forth herein) and the procedures of the Depositary therefor. The Trustee shall have no responsibility or liability for any act or omission of the Depositary. At any time at the request of the beneficial holder of an interest in the Rule 144A Global Note or Permanent Regulation S Global Note to obtain a Certificated Note, such beneficial holder shall be entitled to obtain a Certificated Note upon written request to the Trustee and the Note Custodian in accordance with the standing instructions and procedures existing between the Note Custodian and Depositary for the issuance thereof. Upon receipt of any such request, the Trustee, or the Note Custodian at the direction of the Trustee, will cause, in accordance with the standing instructions and procedures existing between the Depositary and the Note Custodian, the aggregate principal amount of the Rule 144A Global Note or Permanent Regulation S Global Note, as appropriate, to be reduced by the principal amount of the Certificated Note issued upon such request to such beneficial holder and, following such reduction, the Company will execute and the Trustee will authenticate and deliver to such beneficial holder (or its nominee) a Certificated Note or Certificated Notes in the appropriate aggregate principal amount in the name of such beneficial holder (or its nominee) and bearing such restrictive legends as may be required by this Indenture. (c) Transfers to Non-QIB Institutional Accredited Investors. The following provisions shall apply with respect to the registration of any proposed transfer of a Transfer Restricted Security to any Institutional Accredited Investor that is not a QIB (other than any Person that is not a U.S. Person as defined under Regulation S, a "Foreign Person"): (i) the Registrar shall register the transfer of any Note, whether or not such Note bears the Private Placement Legend, if (x) (A) the requested transfer is at least -39- two years after the later of the Issue Date of the Notes and (B) the proposed transferee has certified to the Registrar that the requested transfer is at least two years after last date on which such Note was held by an Affiliate of the Company, or (y) the proposed transferee has delivered to the Registrar (A) a certificate substantially in the form of Exhibit E hereto and (B) such certifications, legal opinions and other information as the Trustee and the Company may reasonably request to confirm that such transaction is in compliance with the Securities Act; and (ii) if the proposed transferor is an Agent Member holding a beneficial interest in the Global Note, upon receipt by the Registrar of (x) the documents, if any, required by clause (i) and (y) instructions given in accordance with the Depositary's and the Registrar's procedures, the Registrar shall reflect on its books and records the date and a decrease in the principal amount of the Global Note in an amount equal to the principal amount of the beneficial interest in the Global Note to be transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Certificated Notes of like tenor and amount. (d) Transfers to QIBs. The following provisions shall apply with respect to the registration of any proposed transfer of a Transfer Restricted Security to a QIB (other than Foreign Persons): (i) if the Note to be transferred consists of Certificated Notes or an interest in the Regulation S Global Note, the Registrar shall register the transfer if such transfer is being made by a proposed transferor who has checked the box provided for on a certificate substantially in the form of Exhibit D(2) stating, or has otherwise advised the Company and the Registrar in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee who is a QIB within the meaning of Rule 144A and is aware that the sale to it is being made in reliance on Rule 144A; and (ii) if the proposed transferee is an Agent Member, and the Note to be transferred consists of Certificated Notes or an interest in the Regulation S Global Note, upon receipt by the Registrar of the documents referred to in clause (i) and instructions given in accordance with the Depositary's and the Registrar's procedures, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the Rule 144A Global Note in an amount equal to the principal amount of the Certificated Notes or the interest in the Regulation S Global Note, as the case may be, to be transferred, and the Trustee shall cancel the Certificated Notes or decrease the amount of the Regulation S Global Note so transferred. (e) Transfers of Interests in the Temporary Regulation S Global Note. The following provisions shall apply with respect to the registration of any proposed transfer of interests in the Temporary Regulation S Global Note: -40- (i) the Registrar shall register the transfer of an interest in the Temporary Regulation S Global Note if (x) the proposed transferor has delivered to the Registrar a certificate substantially in the form of Exhibit F hereto stating, among other things, that the proposed transferee is a Foreign Person or (y) the proposed transferee is a QIB and the proposed transferor has checked the box provided for on a certificate substantially in the form of Exhibit D(2) stating, or has otherwise advised the Company and the Registrar in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee who is a QIB within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A; and (ii) if the proposed transferee is an Agent Member, upon receipt by the Registrar of the documents referred to in clause (i)(y) above and instructions given in accordance with the Depositary's and the Registrar's procedures, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the Rule 144A Global Note in an amount equal to the principal amount of the Temporary Regulation S Global Note to be transferred, and the Trustee, as Note Custodian, shall decrease the amount of the Temporary Regulation S Global Note. (f) Transfers to Foreign Persons. The following provisions shall apply with respect to any transfer of a Transfer Restricted Security to a Foreign Person: (i) the Registrar shall register any proposed transfer of a Note to a Foreign Person upon receipt of a certificate substantially in the form of Exhibit F hereto from the proposed transferor and such certifications, legal opinions and other information as the Trustee or the Company may reasonably request; and (ii) (a) if the proposed transferor is an Agent Member holding a beneficial interest in the Rule 144A Global Note or the Note to be transferred consists of Certificated Notes, upon receipt by the Registrar of (x) the documents, if any, required by paragraph (i) and (y) instructions in accordance with the Depositary's and the Registrar's procedures, the Registrar shall reflect on its books and records the date and a decrease in the principal amount of the Rule 144A Global Note in an amount equal to the principal amount of the beneficial interest in the Rule 144A Global Note or cancel the Certificated Notes, as the case may be, to be transferred, and (b) if the proposed transferee is an Agent Member, upon receipt by the Registrar of instructions given in accordance with the Depositary's and the Registrar's procedures, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the Regulation S Global Note in an amount equal to the principal amount of the Certificated Notes to be transferred, and the Trustee shall decrease the amount of the Rule 144A Global Note. (g) The Depositary. The Depositary shall be a clearing agency registered under the Exchange Act. The Company initially appoints The Depository Trust Company to -41- act as Depositary with respect to the Global Note. Initially, the Rule 144A Global Note and the Regulation S Global Note shall be issued to the Depositary, registered in the name of Cede & Co., as the nominee of the Depositary, and deposited with the Note Custodian for Cede & Co. Notes in Certificated form issued in exchange for all or a part of a Global Note pursuant to this Section 2.6 shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. Upon execution and authentication, the Trustee shall deliver such Certificated Notes in Certificated form to the persons in whose names such Notes in Certificated form are so registered. Certificated Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in the Rule 144A Global Note or the Permanent Regulation S Global Note, as the case may be, if at any time: (i) the Depositary for the Notes notifies the Company that the Depositary is unwilling or unable to continue as Depositary for the Rule 144A Global Note or the Permanent Regulation S Global Note, as the case may be, and a successor Depositary is not appointed by the Company within 90 days after delivery of such notice; or (ii) the Company, at its sole discretion, notifies the Trustee in writing that it elects to cause the issuance of Certificated Notes under this Indenture, and the Company shall execute, and the Trustee shall, upon receipt of an authentication order in accordance with Section 2.2 hereof, authenticate and deliver Certificated Notes in an aggregate principal amount equal to the principal amount of the Rule 144A Global Note or the Permanent Regulation S Global Note, as the case may be, in exchange for such Global Notes. (h) Legends. (i) Except as permitted by the following paragraphs (ii) and (iii), each Note certificate evidencing Global Notes and Certificated Notes (and all Notes issued in exchange therefor or substitution thereof) shall (x) be subject to the restrictions on transfer set forth in this Section 2.6 (including those set forth in the legend below) unless such restrictions on transfer shall be waived by written consent of the Company, and the Holder of each Transfer Restricted Security, by such Holder's acceptance thereof, agrees to be bound by all such restrictions on transfer and (y) bear the legend set forth below (the "Private Placement Legend"): THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE -42- UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO DOLE FOOD COMPANY, INC. OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT, AN "ACCREDITED INVESTOR") THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS NOTE), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF DOLE FOOD COMPANY, INC. SO REQUESTS), OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND DOLE FOOD COMPANY, INC. SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECU- -43- RITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. (ii) Upon any sale or transfer of a Transfer Restricted Security (including any Transfer Restricted Security represented by a Global Note) pursuant to Rule 144 under the Securities Act or pursuant to an effective registration statement under the Securities Act: (a) in the case of any Transfer Restricted Security that is a Certificated Note, the Registrar shall permit the Holder thereof to exchange such Transfer Restricted Security for a Certificated Note that does not bear the legend set forth in (i) above and rescind any restriction on the transfer of such Transfer Restricted Security; and (b) in the case of any Transfer Restricted Security represented by a Global Note, such Transfer Restricted Security shall not be required to bear the legend set forth in (i) above, but shall continue to be subject to the provisions of Section 2.6(b) hereof; provided, however, that with respect to any request for an exchange of a Transfer Restricted Security that is represented by a Global Note for a Certificated Note that does not bear the legend set forth in (i) above, which request is made in reliance upon Rule 144, the Holder thereof shall certify in writing to the Registrar that such request is being made pursuant to Rule 144 (such certifications to be substantially in the form of Exhibit D(2) hereto). (iii) Notwithstanding the foregoing, upon consummation of the Exchange Offer, the Company shall issue and, upon receipt of an authentication order in accordance with Section 2.2 hereof, the Trustee shall authenticate Series B Notes in exchange for Series A Notes accepted for exchange in the Exchange Offer, which Series B Notes shall not bear the legend set forth in (i) above, and the Registrar shall rescind any restriction on the transfer of such Series A Notes, in each case unless the Company has notified the Registrar in writing that the Holder of such Series A Notes is either (A) a broker-dealer, (B) a Person participating in the distribution of the Series A Notes or (C) a Person who is an affiliate (as defined in Rule 144A) of the Company. (iv) Each Global Note, whether or not a Transfer Restricted Security, shall also bear the following legend on the fact thereof: THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED -44- CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. (v) Any Global Note may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Indenture as may be required by the Note Custodian, the Depositary or by the National Association of Securities Dealers, Inc. in order for the Notes to be tradable on the PORTAL Market or tradable on Euroclear or Clearstream or as may be required for the Notes to be tradable on any other market developed for trading of securities pursuant to Rule 144A or Regulation S under the Securities Act or required to comply with any applicable law or any regulation thereunder or with the rules and regulations of any securities exchange or automated quotation system upon which the Notes may be listed or traded or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Notes are subject. (i) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in Global Notes have been exchanged for Certificated Notes, redeemed, repurchased or canceled, all Global Notes shall be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for Certificated Notes, redeemed, repurchased or canceled, the principal amount of Notes represented by such Global Notes shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or the Note Custodian, at the direction of the Trustee, to reflect such reduction. In the event of -45- any transfer of any beneficial interest between the Rule 144A Global Note and the Regulation S Global Note in accordance with the standing procedures and instructions between the Depositary and the Note Custodian and the transfer restrictions set forth herein, the aggregate principal amount of each of the Rule 144A Global Note and the Regulation S Global Note shall be appropriately increased or decreased, as the case may be, and an endorsement shall be made on each of the Rule 144A Global Note and the Regulation S Global Note by the Trustee or the Note Custodian, at the direction of the Trustee, to reflect such reduction or increase. (j) General Provisions Relating to Transfers and Exchanges. (i) To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Certificated Notes and Global Notes at the Registrar's request. (ii) No service charge shall be made to a Holder for any registration of transfer, fee or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 3.6 and 9.5 hereof). (iii) The Registrar shall not be required to register the transfer of or exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part. (iv) All Certificated Notes and Global Notes issued upon any registration of transfer or exchange of Certificated Notes or Global Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Certificated Notes or Global Notes surrendered upon such registration of transfer or exchange. (v) The Company shall not be required: (a) to issue, to register the transfer of or to exchange Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.2 hereof and ending at the close of business on the day of selection; or (b) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part; or (c) to register the transfer of or to exchange a Note between a record date and the next succeeding interest payment date. -46- (vi) Prior to due presentment of the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of all payments with respect to such Notes, and neither the Trustee, any Agent nor the Company shall be affected by notice to the contrary. (vii) The Trustee shall authenticate Certificated Notes and Global Notes in accordance with the provisions of Section 2.2 hereof. Section 2.7. Replacement Notes. If any mutilated Note is surrendered to the Trustee or either the Company or the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company shall issue and the Trustee, upon receipt of an authentication order in accordance with Section 2.2 hereof, shall authenticate a replacement Note if the Trustee's requirements for replacement of Notes are met. If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Trustee and the Company each may charge such Holder for their expenses in replacing such Note. Every replacement Note is an additional obligation of the Company and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder. Section 2.8. Outstanding Notes. The Notes outstanding at any time are all the Notes that have been authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee or the Note Custodian in accordance with the provisions hereof, and those described in this Section as not outstanding. Except as set forth in Section 2.9 hereof, a Note does not cease to be outstanding because the Company or any of its Affiliates holds the Note. If a Note is replaced pursuant to Section 2.7 hereof, it shall cease to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser for value. If the principal amount of any Note is considered paid under Section 4.1 hereof, it ceases to be outstanding and interest on it ceases to accrue. If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes pay- -47- able on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest. Section 2.9. Treasury Notes. In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company, the Guarantors or by any Affiliate thereof shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver of consent, only Notes that a Responsible Officer of the Trustee knows are so owned shall be so disregarded. The Company agrees to notify the Trustee of the existence of any such treasury Notes or Notes owned by the Company, any Guarantor or an Affiliate thereof. Section 2.10. Temporary Notes. Until Certificated Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an authentication order in accordance with Section 2.2 hereof, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of Certificated Notes, but may have such variations as the Company considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate Certificated Notes in exchange for temporary Notes. Holders of temporary Notes shall be entitled to all of the benefits of this Indenture. Section 2.11. Cancellation. The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee, or at the direction of the Trustee, the Registrar or Paying Agent, and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of all canceled Notes in accordance with the Trustee's usual procedures. The Trustee shall maintain a record of all canceled Notes. All cancelled Notes shall be delivered to the Company. Subject to Section 2.7 hereof, the Company may not issue new Notes to replace Notes that have been paid or that have been delivered to the Trustee for cancellation. Section 2.12. Defaulted Interest. If the Company defaults in a payment of interest on the Notes, the Company shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest pay- -48- able on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.1 hereof. The Company shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Company shall fix or cause to be fixed each such special record date and payment date, provided that no such special record date shall be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) shall mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid. Section 2.13. Persons Deemed Owners. Prior to due presentment of a Note for registration of transfer and subject to Section 2.12 hereof, the Company, the Trustee, any Paying Agent, any co-registrar and any Registrar may deem and treat the person in whose name any Note shall be registered upon the register of Notes kept by the Registrar as the absolute owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of the ownership or other writing thereon made by anyone other than the Company, any co-registrar or any Registrar) for the purpose of receiving all payments with respect to such Note and for all other purposes, and none of the Company, the Trustee, any Paying Agent, any co-registrar or any Registrar shall be affected by any notice to the contrary. Section 2.14. CUSIP Numbers. The Company in issuing the Notes may use a "CUSIP" number, and if so, the Trustee shall use the CUSIP number in notices of redemption or exchange as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness or accuracy of the CUSIP number printed in the notice or on the Notes, and that reliance may be placed only on the other identification numbers printed on the Notes. The Company shall notify the Trustee of any change to the CUSIP numbers. ARTICLE III. REDEMPTION AND REPURCHASE Section 3.1. Notices to Trustee. If the Company elects to redeem Notes pursuant to the provisions of Section 3.7 or 3.8 hereof, it shall furnish to the Trustee, at least 30 days but not more than 60 days before the Redemption Date (unless a shorter notice period shall be satisfactory to the Trustee), an Officers' Certificate setting forth the Section of this Indenture pursuant to which the -49- redemption shall occur, the Redemption Date, the principal amount of Notes to be redeemed and the Redemption Price. If the Company is required to offer to repurchase Notes pursuant to the provisions of Section 4.10 or 4.15 hereof, it shall notify the Trustee in writing, at least 30 days but not more than 60 days before the Purchase Date, of the Section of this Indenture pursuant to which the repurchase shall occur, the Purchase Date, the principal amount of Notes required to be repurchased and the Purchase Price and shall furnish to the Trustee an Officers' Certificate to the effect that (a) the Company is required to make or has made a Net Proceeds Offer or a Change of Control Offer, as the case may be, and (b) the conditions set forth in Section 4.10 or 4.15 hereof, as the case may be, have been satisfied. If the Registrar is not the Trustee, the Company shall, concurrently with each notice of redemption or repurchase, cause the Registrar to deliver to the Trustee a certificate (upon which the Trustee may rely) setting forth the principal amounts of Notes held by each Holder. Section 3.2. Selection of Notes. Except as set forth below, if less than all of the Notes are to be redeemed, the Trustee shall select the Notes or portions thereof to be redeemed either (1) in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed, or (2) on a pro rata basis, by lot or by such method as the Trustee shall deem fair and appropriate. In the event of partial redemption by lot, the particular Notes or portions thereof to be redeemed shall be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the Redemption Date by the Trustee from the outstanding Notes not previously called for redemption. If less than all of the Notes tendered are to be repurchased pursuant to the provisions of Section 4.10 hereof, the Trustee shall select the Notes or portions thereof to be repurchased in compliance with Section 4.10. In the event of partial repurchase by lot, the particular Notes or portions thereof to be repurchased shall be selected at the close of business of the last Business Day prior to the Purchase Date. If less than all of the Notes tendered are to be repurchased pursuant to the provisions of Section 3.8 hereof, the Trustee shall select the Notes only on a pro rata basis or on as nearly a pro rata basis as is practicable (subject to DTC procedures). The Trustee shall promptly notify the Company in writing of the Notes or portions thereof selected for redemption or repurchase and, in the case of any Note selected for partial redemption or repurchase, the principal amount thereof to be redeemed or repurchased. Notes and portions thereof selected shall be in amounts of $1,000 or integral multiples of $1,000; except that if all of the Notes of a Holder are to be redeemed, the entire outstanding -50- amount of Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed. No Notes of a principal amount of $1,000 or less shall be redeemed in part. Section 3.3. Notice of Optional or Special Redemption. In the event Notes are to be redeemed pursuant to Section 3.7 or 3.8 hereof, at least 30 days but not more than 60 days before the Redemption Date, the Company shall mail a notice of redemption to each Holder whose Notes are to be redeemed in whole or in part, with a copy to the Trustee. The notice shall identify the Notes or portions thereof to be redeemed (including the CUSIP number, if any) and shall state: (a) the Redemption Date; (b) the Redemption Price; (c) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the Redemption Date, upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued; (d) the name and address of the Paying Agent; (e) that Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price, Additional Interest, if any, and, unless the Redemption Date is after a record date and or before the succeeding interest payment date, accrued interest thereon to the Redemption Date; (f) that, unless the Company defaults in making the redemption payment, interest and any Additional Interest on Notes called for redemption will cease to accrue on and after the Redemption Date, and the only remaining right of the Holders of such Notes is to receive payment of the Redemption Price, any Additional Interest and, unless the Redemption Date is after a record date and on or before the succeeding interest payment date, accrued interest thereon to the Redemption Date upon surrender to the Paying Agent of the Notes redeemed; (g) if fewer than all the Notes are to be redeemed, the identification of the particular Notes (or portions thereof) to be redeemed, as well as the aggregate principal amount of the Notes to be redeemed and the aggregate principal amount of Notes to be outstanding after such partial redemption; -51- (h) the paragraph of the Notes pursuant to which the Notes called for redemption are being redeemed; and (i) that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes and that reliance may be placed only on the other identification numbers printed on the Notes. At the Company's request, the Trustee shall give the notice of redemption in the Company's name and at its expense; provided that the Company shall deliver to the Trustee, at least 40 days prior to the Redemption Date, an Officers' Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph. Section 3.4. Effect of Notice of Redemption. Once notice of redemption is mailed, Notes or portions thereof called for redemption become due and payable on the Redemption Date at the Redemption Price. Upon surrender to any Paying Agent, such Notes or portions thereof shall be paid at the Redemption Price, plus Additional Interest, if any, and accrued interest to the Redemption Date; provided, however, that installments of interest which are due and payable on or prior to the Redemption Date shall be payable to the Holders of such Notes, registered as such, at the close of business on the relevant record date for the payment of such installment of interest. Section 3.5. Deposit of Redemption Price or Purchase Price. On or before 10:00 a.m. Eastern Time on each Redemption Date or Purchase Date, the Company shall irrevocably deposit with the Trustee or with the Paying Agent money sufficient to pay the aggregate amount due on all Notes to be redeemed or repurchased on that date, including without limitation any accrued and unpaid interest and Additional Interest, if any, to the Redemption Date or Repurchase Date. Upon written request by the Company, the Trustee or the Paying Agent shall promptly return to the Company any money not required for that purpose. Unless the Company defaults in making such payment, interest and any Additional Interest on the Notes to be redeemed or repurchased will cease to accrue on the applicable Redemption Date or Purchase Date, whether or not such Notes are presented for payment. If any Note called for redemption shall not be so paid upon surrender because of the failure of the Company to comply with the preceding paragraph, interest will be paid on the unpaid principal, from the applicable Redemption Date or Purchase Date until such principal is paid, and on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.1 hereof. -52- Section 3.6. Notes Redeemed or Repurchased in Part. Upon surrender of a Note that is redeemed or repurchased in part, the Company shall issue and the Trustee shall authenticate for the Holder at the expense of the Company a new Note equal in principal amount to portion of the Note surrendered that is not to be redeemed or repurchased. Section 3.7. Optional Redemption. The Company may redeem any or all of the Notes at any time on or after March 15, 2007 at the Redemption Prices set forth in the Notes (an "Optional Redemption"). Any redemption pursuant to this Section 3.7 shall be made pursuant to the provisions of Sections 3.1 through 3.6 hereof. Section 3.8. Optional Redemption Upon Equity Offerings. In the event the Company completes one or more Equity Offerings on or before March 15, 2006, the Company, at its option, may use the net cash proceeds from any such Equity Offering to redeem up to 35% of the original principal amount of the Notes (a "Special Redemption") at a Redemption Price of 108.875% of the principal amount thereof, together with accrued and unpaid interest and Additional Interest, if any, to the date of redemption, provided, however, that at least 65% of the original principal amount of the Notes initially issued under this Indenture will remain outstanding immediately after each such Special Redemption; and provided, further, that such Special Redemption shall occur within 90 days after the date of the closing of the applicable Equity Offering. Any redemption pursuant to this Section 3.8 shall be made pursuant to the provisions of Sections 3.1 through 3.6 hereof. Section 3.9. Repurchase upon Change of Control Offer. In the event that, pursuant to Section 4.15 hereof, the Company shall be required to commence a Change of Control Offer, it shall follow the procedures specified below. The Change of Control Offer shall remain open for a period from the date of the mailing of the notice of the Change of Control Offer described in the next paragraph until a date determined by the Company which is at least 30 but no more than 60 days from the date of mailing of such notice and no longer, except to the extent that a longer period is required by applicable law (the "Change of Control Offer Period"). On the Purchase Date, which shall be no later than the last day of the Change of Control Offer Period, the Company shall purchase the principal amount of Notes properly tendered in response to the Change of Control Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. -53- Prior to the mailing of the notice referred to above, but in any event within 30 days following any Change of Control, the Company covenants to (1) repay in full all Obligations, and terminate all commitments, under the Credit Agreement and all other Guarantor Senior Debt the terms of which require repayment upon a Change of Control or offer to repay in full all Obligations, and terminate all commitments under, the Credit Agreement and all other such Guarantor Senior Debt and to repay the Indebtedness owed to (and terminate the commitments of) each lender which has accepted such offer; or (2) obtain the requisite consents under the Credit Agreement and all other Guarantor Senior Debt to permit the repurchase of the Notes as provided below. The Company shall first comply with the covenant in the immediately preceding sentence before it shall be required to either repurchase Notes or send the notice pursuant to the provisions described above. The Company's failure to comply with the covenant described in the second preceding sentence (and any failure to send the notice referred to in the immediately succeeding paragraph as a result of the prohibition in the second preceding sentence) may (with notice and lapse of time) constitute an Event of Default described in clause (c) of Section 6.1 hereof, but shall not constitute an Event of Default described in clause (b) under Section 6.1 hereof. Within 30 days following any Change of Control, the Company shall send, by first class mail, a notice to the Trustee and each of the Holders. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Change of Control Offer. The Change of Control shall be made to all Holders. The notice, which shall govern the terms of the Change of Control Offer, shall state: (a) the transaction or transactions that constitute the Change of Control, providing information, to the extent publicly available, regarding the Person or Persons acquiring control, and stating that the Change of Control Offer is being made pursuant to this Section 3.9 and Section 4.15 hereof and that, to the extent lawful, all Notes tendered will be accepted for payment; (b) the Purchase Price, the last day of the Change of Control Offer Period, and the Purchase Date; (c) that any Note not properly tendered or otherwise not accepted for repurchase will continue to accrue interest and Additional Interest, if any; (d) that, unless the Company defaults in the payment of the amount due on the Purchase Date, all Notes or portions thereof accepted for repurchase pursuant to the Change of Control Offer shall cease to accrue interest and Additional Interest, if any, after the Purchase Date; (e) that Holders electing to have any Notes purchased pursuant to the Change of Control Offer will be required to tender the Notes, with the form entitled "Option of Holder To Elect Purchase" on the reverse of the Notes completed, or trans- -54- fer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice not later than the third Business Day preceding the Purchase Date; (f) that Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Change of Control Offer Period, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for repurchase, and a statement that such Holder is withdrawing his election to have the Notes redeemed in whole or in part; and (g) that Holders whose Notes are being repurchased only in part will be issued new Notes equal in principal amount to the portion of the Notes tendered (or transferred by book-entry transfer) that is not to be repurchased, which portion must be equal to $1,000 in principal amount or an integral multiple thereof. On or before the Purchase Date, the Company shall to the extent lawful, (i) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent an amount equal to the Purchase Price, together with accrued and unpaid interest and Additional Interest, if any, thereon to the Purchase Date in respect of all Notes or portions thereof so tendered and accepted for repurchase and (iii) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers' Certificate stating the aggregate principal amount of Notes or portions thereof being repurchased by the Company. The Paying Agent shall promptly (but in any case not later than five days after the Purchase Date) mail to each Holder of Notes so repurchased the amount due in connection with such Notes, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company in the form of an Officers' Certificate shall authenticate and mail or deliver (or cause to transfer by book entry) to each relevant Holder a new Note, in a principal amount equal to any unpurchased portion of the Notes surrendered to the Holder thereof; provided, that each such new Note shall be in a principal amount of $l,000 or and integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Purchase Date. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Interest, if any, in each case to the Purchase Date, shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders pursuant to the Change of Control Offer. -55- Section 3.10. Repurchase upon Application of Excess Proceeds. In the event that, pursuant to Section 4.10 hereof, the Company shall be required to commence a Net Proceeds Offer, it shall follow the procedures specified below. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. The Net Proceeds Offer shall be made to all Holders. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by law. The notice, which shall govern the terms of the Net Proceeds Offer, shall state: (a) that the Net Proceeds Offer is being made pursuant to this Section 3.10 and Section 4.10 hereof; (b) the Net Proceeds Offer Amount, the Purchase Price and the Purchase Date; (c) that any Note not properly tendered or otherwise not accepted for repurchase shall continue to accrue interest and Additional Interest, if any; (d) that, unless the Company defaults in the payment of the amount due on the Purchase Date, all Notes or portions thereof accepted for repurchase pursuant to the Net Proceeds Offer shall cease to accrue interest and Additional Interest, if any, after the Purchase Date; (e) that Holders electing to have any Notes repurchased pursuant to any Net Proceeds Offer shall be required to tender the Notes, with the form entitled Option of Holder To Elect Purchase on the reverse of the Notes completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Purchase Date; (f) that Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the Purchase Date, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes delivered for repurchase and a statement that such Holder is withdrawing his election to have such Notes repurchased in whole or in part; -56- (g) that, to the extent Holders properly tender Notes and holders of Pari Passu Debt properly tender such Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Debt will be purchased on a pro rata basis based on the aggregate amounts of Notes and Pari Passu Debt tendered (and the Trustee shall select the tendered Notes of tendering Holders on a pro rata basis based on the amount of Notes tendered); and (h) that Holders whose Notes are being repurchased only in part will be issued new Notes equal in principal amount to the portion of the Notes tendered (or transferred by book-entry transfer) that is not to be repurchased, which portion must be equal to $1,000 in principal amount or an integral multiple thereof. On or before the Purchase Date, the Company shall to the extent lawful, (i) accept for payment, on a pro rata basis in accordance with this Indenture to the extent necessary, the Net Proceeds Offer Amount of (A) Notes or portions thereof properly tendered pursuant to the Net Proceeds Offer and (B) properly tendered Pari Passu Debt, or if less than the Net Proceeds Offer Amount has been tendered, all Notes and Pari Passu Debt properly tendered, (ii) deposit with the Paying Agent an amount equal to the Purchase Price, plus accrued and unpaid interest and Additional Interest, if any, thereon to the Purchase Date in respect of all Notes or portions thereof so tendered and accepted for repurchase and (iii) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers' Certificate stating the aggregate principal amount of Notes or portions thereof being repurchased by the Company. The Paying Agent shall promptly (but in any case not later than five days after the Purchase Date) mail to each Holder of Notes so repurchased the amount due in connection with such Notes, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company in the form of an Officers' Certificate shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion to the Holder thereof; provided, that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Net Proceeds Offer on or as soon as practicable after the Purchase Date. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Interest, if any, in each case to the Purchase Date, shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders to the Net Proceeds Offer. -57- ARTICLE IV. COVENANTS Section 4.1. Payment of Principal and Interest. The Company shall pay or cause to be paid the principal, Redemption Price and Purchase Price of, and interest on the Notes on the dates, in the amounts and in the manner provided herein and in the Notes. Principal, Redemption Price, Purchase Price and interest shall be considered paid on the date due if the Paying Agent, if other than the Company, holds as of 10:00 a.m. Eastern Time on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay the aggregate amount then due. The Company shall pay all Additional Interest, if any, on the dates, in the amounts and in the manner set forth in the Registration Rights Agreement. The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal, Redemption Price and Purchase Price at the rate equal to 1% per annum in excess of the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest and Additional Interest (without regard to any applicable grace period) at the same rate to the extent lawful. Section 4.2. Maintenance of Office or Agency. The Company shall maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Office of the Trustee. The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain an office or agency in the Borough of Manhattan, the City of New York, for such purposes. The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. -58- The Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.3. The Trustee may resign such agency at any time by giving written notice to the Company no later than 30 days prior to the effective date of such resignation. Section 4.3. Reports. Whether or not required by the rules and regulations of the Commission, so long as any Notes are outstanding, the Company will deliver to each Holder, within the time periods specified in the Commission's rule and regulations: (i) all quarterly and annual financial information that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if the Company were required to file such Forms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" that describes the financial condition and results of operations of the Company and its consolidated Subsidiaries (including a "Management's Discussion and Analysis of Financial Condition and Results of Operations") and, with respect to the annual information only, a report thereon by the Company's certified independent accountants; and (ii) all current reports that would be required to be filed with the Commission on Form 8-K if the Company were required to file such reports, in each case within the time periods specified in the Commission's rules and regulations. In addition, following the consummation of the Exchange Offer contemplated by the Registration Rights Agreement, whether or not required by the rules and regulations of the Commission, the Company will file electronically via the Electronic Data Gathering, Analysis and Retrieval (EDGAR) system or any successor system maintained by the Commission a copy of all such information and reports with the Commission for public availability within the time periods specified in the Commission's rules and regulations (unless the Commission will not accept such a filing) and make such information available to securities analysts and prospective investors upon request. In addition, the Company has agreed that, for so long as any Notes remain outstanding, it will furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. Section 4.4. Compliance Certificate. The Company and each Guarantor shall deliver to the Trustee, within 120 days after the end of each fiscal year, an Officers' Certificate further stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture in all ma- -59- terial respects, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture in all material respects and is not in Default in the performance or observance of any of the terms, provisions and conditions of this Indenture (and, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default) of which he or she may have knowledge, and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which, payments on account of the principal of or interest, if any, on the Notes is prohibited or if such event has occurred, a description of the event. So long as not contrary to the then current recommendations of the American Institute of Certified Public Accountants, the year-end financial statements delivered pursuant to Section 4.3 above shall be accompanied by a written statement of the Company's independent public accountants (who shall be a firm of established national reputation) that in making the examination necessary for certification of such financial statements, nothing has come to their attention that would lead them to believe that the Company has violated any provisions of Article IV or Article V hereof or, if any such violation has occurred, specifying the nature and period of existence thereof, it being understood that such accountants shall not be liable directly or indirectly to any Person for any failure to obtain knowledge of any such violation. The Company shall, so long as any of the Notes are outstanding, deliver to the Trustee, forthwith (and in any event within five Business Days) upon any Officer of the Company becoming aware of any Default or Event of Default an Officers' Certificate specifying such Default or Event of Default. Section 4.5. Taxes. The Company shall pay or discharge, and shall cause each of its Subsidiaries to pay or discharge, prior to delinquency, all material taxes, assessments, and governmental levies except such as are contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes. Section 4.6. Stay, Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants it shall not, by resort to any such law, hinder, delay or impede -60- the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though such law has not been enacted. Section 4.7. Limitation on Restricted Payments. The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly: (1) declare or pay any dividend or make any distribution (other than dividends or distributions payable in Qualified Capital Stock of the Company) on or in respect of shares of the Company's Capital Stock to holders of such Capital Stock; (2) purchase, redeem or otherwise acquire or retire for value any Capital Stock of the Company or any warrants, rights or options to purchase or acquire shares of any class of such Capital Stock; (3) make any principal payment on, purchase, defease, redeem, prepay, decrease or otherwise acquire or retire for value, prior to any scheduled final maturity, scheduled redemption or repayment or scheduled sinking fund payment, any Subordinated Indebtedness (other than intercompany Indebtedness among the Company and/or the Guarantors which Indebtedness was permitted to be incurred pursuant to clause (6) or (7) of the definition of "Permitted Indebtedness"); or (4) make any Investment (other than Permitted Investments) (each of the foregoing actions set forth in clauses (1), (2), (3) and (4) being referred to as a "Restricted Payment") if at the time of such Restricted Payment or immediately after giving effect thereto, (i) a Default or an Event of Default shall have occurred and be continuing; or (ii) the Company is not able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with paragraph (a) of Section 4.9 hereof; or (iii) the aggregate amount of Restricted Payments (including such proposed Restricted Payment) made subsequent to the Issue Date (the amount expended for such purposes, if other than in cash, being the fair market value of such property as determined in good faith by the Board of Directors of the Company) shall exceed the sum of: -61- (v) 50% of the cumulative Consolidated Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) of the Company earned during the period commencing on and including March 23, 2003 and ending on the last day of the most recent fiscal quarter for which financial information is available to the Company (treating such period as a single accounting period); plus (w) 100% of the aggregate net cash proceeds and the fair market value (as determined in good faith by the Board of Directors of the Company) of any asset or property other than cash received by the Company from any Person (other than a Subsidiary of the Company) as a contribution to capital or from the issuance and sale subsequent to the Issue Date and on or prior to the date such Restricted Payment is made of Qualified Capital Stock of the Company or warrants, options or other rights to acquire Qualified Capital Stock of the Company (but excluding any debt security that is convertible into, or exchanged for, Qualified Capital Stock until such debt security has been converted into, or exchanged for, Qualified Capital Stock); plus (x) without duplication of any amounts included in clause (iii)(w) above, 100% of the aggregate net cash proceeds of any equity contribution received by the Company subsequent to the Issue Date and on or prior to the date such Restricted Payment is made from a holder of the Company's Capital Stock (excluding, in the case of clauses (iii)(w) and (x), any net cash proceeds from an Equity Offering to the extent used to redeem the Notes in compliance with the provisions set forth under Section 3.8 hereof); plus (y) without duplication, the sum of: (1) the aggregate amount returned in cash on or with respect to Investments (other than Permitted Investments) made subsequent to the Issue Date whether through interest payments, principal payments, dividends or other distributions or payments; (2) the net cash proceeds and the fair market value (as determined in good faith by the Board of Directors of the Company) of any asset or property other than cash received by the Company or any of its Restricted Subsidiaries from the disposition of all or any portion of such Investments (other than to a Subsidiary of the Company); and (3) upon redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the fair market value of such Subsidiary; -62- provided, however, that the amounts included in clauses (1), (2) and (3) above shall not be included in "Consolidated Net Income" for purposes of clause (iii)(v) above; plus (z) $35.0 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph do not prohibit: (1) the payment of any dividend within 60 days after the date of declaration of such dividend if the dividend would have been permitted on the date of declaration; (2) the acquisition of any shares of Capital Stock of the Company either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) through the application of net proceeds of a substantially concurrent sale for cash (other than to a Subsidiary of the Company) of shares of Qualified Capital Stock of the Company; (3) the repurchase, redemption or other payment or an acquisition of any Subordinated Indebtedness either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) through the application of net proceeds of a substantially concurrent sale (other than to a Subsidiary of the Company) of (a) shares of Qualified Capital Stock of the Company for cash or (b) Refinancing Indebtedness; (4) so long as no Default or Event of Default shall have occurred and be continuing, dividends or distributions to Holdings to permit it to repurchase Common Stock of Holdings or purchases by the Company of Common Stock of Holdings from employees of Holdings or the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $2.0 million in any calendar year; (5) loans, advances, dividends or distributions by the Company to Holdings not to exceed an amount necessary to permit Holdings to pay any costs (including, without limitation, all professional fees and expenses) incurred to comply with its reporting obligations under federal or state laws in connection with the Credit Agreement or any other agreement or instrument relating to Indebtedness of Holdings, the Company or any Restricted Subsidiary, or otherwise incurred in connection with compliance with applicable laws or applicable rules of any governmental, regulatory or self-regulatory body or stock exchange, including in respect of reports filed with respect to the Securities Act, the Exchange Act or the respective rules and regulations promulgated thereunder and, for so long as Holdings' primary business is to hold the -63- Capital Stock of the Company, all other costs incurred by Holdings relating to Holdings' ownership of the Capital Stock of the Company; (6) payments by the Company to Holdings to pay (x) any taxes, charges or assessments (other than federal, state and local income taxes and withholding imposed on payments made by Holdings) required to be paid by Holdings by virtue of its being incorporated or having capital stock outstanding (but not by virtue of owning stock or other equity interests of any corporation other than the Company or any of its Subsidiaries), or being a holding company parent of the Company or receiving actual or, in the case of Subsidiaries of the Company, deemed dividends from or other distributions in respect of the stock of the Company or any of its Subsidiaries, or having guaranteed any obligations of the Company or any Subsidiary, or having made any payment in respect of any of the items for which the Company is permitted to make payments to Holdings pursuant to this covenant or (y) any other federal, state, foreign, provincial or local taxes for which Holdings is liable up to an amount not to exceed with respect to any such taxes the total amount of such taxes which the Company would have been required to pay on a separate company basis or on a consolidated basis if the Company had filed a consolidated return on behalf of an affiliated group (as defined in Section 1504 of the Internal Revenue Code of 1986, as amended, or an analogous provision of state, local or foreign law) of which it were the common parent, or with respect to state and local taxes, on a combined basis if the Company had filed a combined return on behalf of an affiliated group of which it were a member; (7) payments made to purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness of the Company pursuant to provisions requiring the Company to offer to purchase, redeem, defease or otherwise acquire or retire for value such Subordinated Indebtedness upon the occurrence of a "change of control" as defined in the agreements or instruments governing such Subordinated Indebtedness; provided, however, that the Company has made a Change of Control Offer and has purchased all Notes tendered in connection with such Change of Control Offer; (8) repurchase of Capital Stock deemed to occur upon exercise of stock options if such Capital Stock represents a portion of the exercise price of those options; (9) payments to the Dole Food Company Inc. Excess Savings Plan or any trust established with respect to the Dole Food Company Inc. Excess Savings Plan; and (10) payments made to the holders of Capital Stock in any Person that is merged or consolidated with or into the Company or any Restricted Subsidiary pursuant to any merger, consolidation or sale of assets effected in accordance with Section 5.1 hereof; provided, however, that no such payment may be made pursuant to this -64- clause (10) unless, after giving pro forma effect to such transaction, and the incurrence of any Indebtedness in connection with such transaction and the use of the proceeds from such transaction, the Company would be able to incur $1.00 of additional Indebtedness under paragraph (a) of Section 4.9 hereof. In determining the aggregate amount of Restricted Payments made subsequent to the Issue Date in accordance with clause (iii) of the second preceding paragraph, amounts expended pursuant to clauses (1), (2)(ii), (3)(ii)(a) and (4) of the immediately preceding paragraph shall be included in such calculation. Section 4.8. Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary of the Company to: (1) pay dividends or make any other distributions on or in respect of its Capital Stock; (2) make loans or advances to the Company or any other Restricted Subsidiary or to pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary of the Company; or (3) transfer any of its property or assets to the Company or any other Restricted Subsidiary of the Company, except in each case for such encumbrances or restrictions existing under or by reason of: (a) applicable law or any rule, regulation or order; (b) this Indenture, the Notes, the Guarantees and the Existing Notes and related guarantees; (c) customary non-assignment provisions or restrictions on cash or other deposits and net worth covenants contained in any contract or any lease governing a leasehold interest of any Restricted Subsidiary of the Company; (d) any agreement or instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired; -65- (e) agreements or instruments existing on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date, including the Existing Notes Indenture; (f) the Credit Agreement; (g) an agreement governing Guarantor Senior Debt permitted to be incurred under this Indenture (other than Guarantor Senior Debt under, or with respect to, the Credit Agreement); provided that, with respect to any agreement governing such Guarantor Senior Debt, the provisions relating to such encumbrance or restriction are no less favorable to the Company in any material respect as determined by the Board of Directors of the Company in its reasonable and good faith judgment than the provisions contained in the Credit Agreement as in effect on the Issue Date; (h) restrictions on the transfer of assets subject to any Lien permitted under this Indenture imposed by the holder of such Lien; (i) restrictions imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale; (j) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business; (k) other Indebtedness of Restricted Subsidiaries that are not Guarantors permitted to be incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with Section 4.9 hereof; provided, however, that the Board of Directors of the Company determines in good faith at the time such dividend and other payment restrictions are created that such dividend and other payment restrictions do not materially adversely affect the Company's ability to pay principal of, and interest on, the Notes; (l) purchase money obligations (including any Capitalized Lease Obligations) relating to property acquired in the ordinary course of business; (m) Liens securing Indebtedness otherwise permitted to be incurred under Sections 4.12 and 4.23(a) hereof (including Permitted Liens) that limit the right of the debtor to dispose of the assets subject to such Liens; and (n) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (b), (d), (e) and (g) through (m) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are not in the ag- -66- gregate materially less favorable to the Company as determined by the Board of Directors of the Company in their reasonable and good faith judgment than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clauses (b), (d), (e) and (g) through (m). Section 4.9. Limitation on Incurrence of Additional Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume, guarantee, acquire, become liable, contingently or otherwise, with respect to, or otherwise become responsible for payment of (collectively, "incur") any Indebtedness (other than Permitted Indebtedness); provided, however, that if no Default or Event of Default shall have occurred and be continuing at the time of or as a consequence of the incurrence of any such Indebtedness, the Company or any of its Restricted Subsidiaries that is or, upon such incurrence, becomes a Guarantor may incur Indebtedness (including, without limitation, Acquired Indebtedness) and any Restricted Subsidiary of the Company that is not or will not, upon such incurrence, become a Guarantor may incur Acquired Indebtedness, in each case if on the date of the incurrence of such Indebtedness, after giving effect to the incurrence thereof, the Consolidated Fixed Charge Coverage Ratio of the Company is greater than 2.0 to 1.0. (b) Notwithstanding the preceding paragraph, the Company will not incur any Indebtedness if such Indebtedness is by its terms subordinate or junior in right of payment to any other Indebtedness of the Company, unless such Indebtedness is also by its terms made subordinate or junior in right of payment to the Notes to the same extent and in the same manner as such Indebtedness is subordinated to other Indebtedness of the Company. Section 4.10. Limitation on Asset Sales. (A) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless: (1) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of (as determined in good faith by the Company's Board of Directors); (2) at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash, Cash Equivalents or Replacement Assets and shall be received at the time of such disposition; provided that: (a) the amount of any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or any -67- such Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantee of a Guarantor) that are assumed by the transferee of any such assets, and (b) the fair market value of any securities or other assets received by the Company or any such Restricted Subsidiary in exchange for any such assets that are converted into cash within 180 days after such Asset Sale, shall be deemed to be cash for purposes of this provision; and (3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof (provided that if the Company or such Restricted Subsidiary, as the case may be, has entered into an agreement in definitive form to so apply such Net Cash Proceeds, the transaction contemplated by such agreement must be consummated within the later of such 365 day period and 120 days from the date of the execution of such agreement) either: (a) to repay any Obligations under the Credit Agreement or any Guarantor Senior Debt and, in the case of any such Indebtedness under a revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility; (b) to make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale or in properties and assets (including Capital Stock) that will be used in the business of the Company and its Restricted Subsidiaries as existing on the Issue Date or in businesses reasonably related thereto ("Replacement Assets"); and/or (c) a combination of repayment and investment permitted by the foregoing clauses (3)(a) and (3)(b). (B) Pending the final application of such Net Cash Proceeds, the Company may temporarily reduce borrowings under the Credit Agreement or any other revolving credit facility, if any. On the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (3)(a), (3)(b) and (3)(c) of paragraph (A) above or, in the event that a definitive agreement has been entered into prior to such 366th day pursuant to which the Net Cash Proceeds are to be applied, on the later of the 366th day and the 121st day after the execution of such agreement (each, a "Net Proceeds Offer Trigger Date"), such aggregate amount of Net Cash Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(a), (3)(b) and (3)(c) of the preceding paragraph (each a "Net Proceeds Offer Amount") shall be applied by -68- the Company or such Restricted Subsidiary to make an offer to purchase (the "Net Proceeds Offer") to all Holders and, to the extent required by the terms of any Pari Passu Debt, an offer to purchase to all holders of such Pari Passu Debt, on a date (the "Net Proceeds Offer Payment Date") not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of any such Pari Passu Debt) on a pro rata basis, that amount of Notes (and Pari Passu Debt) equal to the Net Proceeds Offer Amount at a price equal to 100% of the principal amount of the Notes (and Pari Passu Debt) to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase. (C) If at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder as of the date of such conversion or disposition and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10. (D) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $15.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $15.0 million, shall be applied as required pursuant to this Section 4.10). (E) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.1, which transaction does not constitute a Change of Control, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for the purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10. (F) If any Net Cash Proceeds remain after the consummation of any Net Proceeds Offer, the Company may use such Net Cash Proceeds for any purpose not otherwise prohibited by this Indenture without regard to this Section 4.10. Upon completion of each Net Proceeds Offer, the Net Proceeds Offer Amount will be reset to zero. (G) In the event the Company or any of its Restricted Subsidiaries consummate a single Asset Sale for which the Company or its Restricted Subsidiaries receive aggregate consideration at the time of such Asset Sale in excess of $100.0 million, the Company or such Restricted Subsidiary, as the case may be, shall, prior to the consummation thereof, obtain a favorable opinion as to the fairness of such Asset Sale to the Company or the relevant -69- Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee. (H) Notwithstanding paragraphs (A) and (B) of this Section 4.10, the Company and its Restricted Subsidiaries will be permitted to enter into and consummate an Asset Swap without complying with such paragraphs to the extent that: (1) at the time of entering into such Asset Swap or immediately after giving effect to such Asset Swap, no Default or Event of Default shall have occurred or be continuing or would occur as a consequence thereof, and (2) in the event that such Asset Swap involves an aggregate amount in excess of $10.0 million, a majority of the members of the Board of Directors of the Company shall have approved the terms of such Asset Swap and determined that the consideration received in such Asset Swap is at least equal to the fair market value of the assets disposed of in such Asset Swap. (I) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.10, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue thereof. Section 4.11. Limitations on Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each an "Affiliate Transaction"), other than (x) Affiliate Transactions permitted under the third paragraph below or (y) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm's-length basis from a Person that is not an Affiliate of the Company or such Restricted Subsidiary. All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments with a fair market value in excess of $7.5 million shall be approved by the Board of Directors of the Company or such Restricted Subsidiary, as the case may be, such approval to be evidenced by a Board Resolution stating that such Board of Directors has determined that such transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction (or a series of related Affiliate Transactions related to a -70- common plan) that involves an aggregate fair market value of more than $20.0 million, the Company or such Restricted Subsidiary, as the case may be, shall, prior to the consummation thereof, obtain a favorable opinion as to the fairness of such transaction or series of related transactions to the Company or the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee. The restrictions set forth in this Section 4.11 shall not apply to: (1) reasonable fees and compensation paid to and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any Restricted Subsidiary of the Company as determined in good faith by the Company's Board of Directors or senior management; (2) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture; (3) any agreement, or any arrangement the terms of which have been disclosed prior to the Issue Date in the Final Memorandum, as in effect as of the Issue Date or any amendment or replacement agreement thereto or any transaction contemplated thereby (including pursuant to any amendment or replacement agreement thereto) so long as any such amendment or replacement agreement taken as a whole is not materially more disadvantageous to the Holders than the original agreement as in effect on the Issue Date; (4) payments and Investments permitted by this Indenture; (5) the payment of fees and expenses incurred in connection with the consummation of the transactions being consummated on the Issue Date; (6) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise (other than issuances, payments, awards or grants to David H. Murdock) pursuant to, or the funding of, employment arrangements, employee stock options and employee stock ownership plans approved by the applicable Board of Directors; (7) loans or advances to employees in the ordinary course of business of the Company or any of its Restricted Subsidiaries consistent with the past practice; (8) transactions with customers, clients, vendors, suppliers or other purchasers or sellers of goods or services, in each case in the ordinary course of business -71- (including, without limitation, pursuant to joint venture agreements) and otherwise in compliance with the terms of this Indenture; (9) any transaction on arm's-length terms with any non-Affiliate that becomes an Affiliate as a result of such transaction; (10) purchases and sales of product and raw materials, insurance arrangements and payments, all of the foregoing in the ordinary course of business consistent with past practice or as may be necessary to accommodate legal, regulatory or other changes in the business of the Company and its Restricted Subsidiaries; (11) employment agreements and similar arrangements with employees and independent contractors other than David H. Murdock; (12) the issuance and sale of Qualified Capital Stock; and (13) payments made pursuant to the following conditions: if the Company is to file consolidated federal income tax returns with Holdings or combined or unitary state income tax returns with Holdings, the Company may enter into a tax sharing agreement with Holdings and may pay to Holdings amounts when due and payable pursuant to such tax sharing agreement in respect of amounts of tax due with respect to such consolidated, combined or unitary returns and any additional taxes due from time to time as a result of any audit thereof, as the case may be, in each case in an amount not to exceed the amount of tax that the Company would have been obligated to pay to the appropriate taxing authority if the Company and its Subsidiaries had filed a hypothetical separate consolidated, combined or unitary return for the then current year and all prior years ending after the Issue Date. Section 4.12. Limitation on Liens. This Section 4.12 will apply to the Notes after the Existing Notes no longer remain outstanding or in the event that the requisite consents from the holders of Existing Notes have been received to have the obligations of the Company released with respect to the sections described in the Existing Notes Indenture comparable to Sections 4.23(a) and 4.23(b) hereof. In addition, this Section 4.12 shall apply to the Notes if the comparable provisions under Sections 4.23(a) and 4.23(b) hereof are no longer applicable as a result of defeasance under the terms of the Existing Notes Indenture. The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens (other than Permitted Liens) of any kind against or upon any property or assets of the Company or any of its Restricted Subsidiaries, whether owned on the Issue Date or acquired after -72- the Issue Date, or any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless: (1) in the case of Liens securing Subordinated Indebtedness, the Notes or the Guarantee of such Guarantor, as the case may be, are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and (2) in all other cases, the Notes or the Guarantee of such Guarantor, as the case may be, are equally and ratably secured by a Lien on such property, assets, proceeds, income or profits. Section 4.13. Continued Existence. Subject to Article V hereof, each of the Company and the Guarantors shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) its corporate or other existence in accordance with the organizational documents (as the same may be amended from time to time) of the Company or such Guarantor and (ii) the material rights (charter and statutory), licenses and franchises of the Company or such Guarantor, except to the extent that the applicable Board of Directors determines in good faith that the preservation of such right, license or franchise is no longer necessary or desirable in the conduct of the business of the Company or such Guarantor and that the loss thereof is not disadvantageous in any material respect to the Holders. Section 4.14. Insurance Matters. The Company shall provide or cause to be provided, for itself and each of its Subsidiaries, insurance (including appropriate self-insurance) against loss or damage of the kinds that, in the reasonable, good faith opinion of the Company, are adequate and appropriate for the conduct of the business of the Company and its Subsidiaries in a prudent manner, with reputable insurers or with the government of the United States of America or an agency or instrumentality thereof, in such amounts, with such deductibles, and by such methods as shall be either (i) consistent with past practices of the Company or the applicable Subsidiary or (ii) customary, in the reasonable, good faith opinion of the Company, for corporations similarly situated in the industry, unless the failure to provide such insurance (together with all other such failures) would not have a material adverse effect on the financial condition or results of operations of the Company and its Subsidiaries, taken as a whole. Section 4.15. Offer to Repurchase upon Change of Control. Upon the occurrence of a Change of Control, each Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of such Holder's Notes (a "Change of Control Offer") at a Purchase Price in cash equal to 101% of the aggregate principal amount thereof, together with accrued and un- -73- paid interest and Additional Interest, if any, thereon to the Purchase Date. The Change of Control Offer shall be made in compliance with the applicable procedures set forth in Article III hereof and shall include all instructions and materials necessary to enable Holders to tender their Notes. The Company will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.15, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.15 by virtue hereof. Section 4.16. Additional Subsidiary Guarantees. If the Company or any of its Restricted Subsidiaries transfers or causes to be transferred, in one transaction or a series of related transactions, any property to any Domestic Restricted Subsidiary that is a Wholly Owned Restricted Subsidiary and that is not a Guarantor, or if the Company or any of its Restricted Subsidiaries shall organize, acquire or otherwise invest in another Domestic Restricted Subsidiary that is a Wholly Owned Restricted Subsidiary, in either case, after giving effect to such transfer or other such event, having total assets with a book value in excess of $2.5 million, then such transferee or acquired or other Restricted Subsidiary shall, within 15 Business Days of such organization, acquisition or investment: (1) execute and deliver to the Trustee a supplemental indenture in form reasonably satisfactory to the Trustee pursuant to which such Restricted Subsidiary shall unconditionally guarantee on a senior subordinated basis all of the Company's obligations under the Notes and this Indenture on the terms set forth in this Indenture (provided that such Guarantee shall be limited as necessary to prevent such Guarantee from constituting a fraudulent conveyance or fraudulent transfer under applicable law); and (2) deliver to the Trustee an opinion of counsel that such supplemental indenture has been duly authorized, executed and delivered by such Restricted Subsidiary and constitutes a legal, valid, binding and enforceable obligation of such Restricted Subsidiary. -74- Thereafter, such Restricted Subsidiary shall be a Guarantor for all purposes of this Indenture (until released from its Guarantee in accordance with the terms of this Indenture). Section 4.17. Conduct of Business. The Company and its Restricted Subsidiaries will not engage in any businesses which are not the same, similar, ancillary or reasonably related to the businesses in which the Company and its Restricted Subsidiaries are currently engaged on the Issue Date or which are contemplated in the Final Memorandum except to such extent as is not material to the Company and its Restricted Subsidiaries taken as a whole, or with respect to businesses acquired by the Company or its Restricted Subsidiaries that are intended to be disposed of within a reasonable time after the acquisition thereof. Section 4.18. Payments for Consent. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid and is paid to all Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement. Section 4.19. Limitation on Issuance of Preferred Stock of Restricted Subsidiaries. The Company will not permit any of its Restricted Subsidiaries that are not Guarantors to issue any Preferred Stock (other than to the Company or to a Wholly Owned Restricted Subsidiary of the Company) or permit any Person (other than the Company or a Wholly Owned Restricted Subsidiary of the Company) to own any Preferred Stock of any Restricted Subsidiary of the Company that is not a Guarantor. Section 4.20. Prohibition on Incurrence of Senior Subordinated Guarantees. The Company will not permit any Restricted Subsidiary that is a Guarantor to incur or suffer to exist Indebtedness that is senior in right of payment to such Guarantor's Guarantee and subordinate in right of payment to any other Indebtedness of such Guarantor. Section 4.21. Limitation of Guarantees by Restricted Subsidiaries. The Company will not permit any Restricted Subsidiary that is not a Guarantor, directly or indirectly, by way of the pledge of any intercompany note or otherwise, to assume, guarantee or in any other manner become liable with respect to any Indebtedness of the Company or any other Restricted Subsidiary of the Company (other than: (1) Indebtedness or other obligations under the Credit Agreement; (2) Permitted Indebtedness of a Restricted -75- Subsidiary of the Company; (3) Indebtedness under Currency Agreements in reliance on clause (5) of the definition of Permitted Indebtedness; or (4) Interest Swap Obligations incurred in reliance on clause (4) of the definition of Permitted Indebtedness), unless, in any such case, such Restricted Subsidiary executes and delivers a supplemental indenture to this Indenture providing a senior subordinated guarantee of payment of the Notes by such Restricted Subsidiary. Notwithstanding the foregoing, any such Guarantee by a Restricted Subsidiary of the Notes shall provide by its terms that it shall be automatically and unconditionally released and discharged, without any further action required on the part of the Trustee or any Holder, upon: the unconditional release of such Restricted Subsidiary from its liability in respect of the Indebtedness in connection with which such Guarantee was executed and delivered pursuant to this paragraph; if the Company designates any Restricted Subsidiary that is a Guarantor to be an Unrestricted Subsidiary in accordance with the applicable provisions of this Indenture; or any sale or other disposition (by merger or otherwise) to any Person which is not a Restricted Subsidiary of the Company of all of the Company's Capital Stock in, or all or substantially all of the assets of, such Restricted Subsidiary; provided that (a) such sale or disposition of such Capital Stock or assets is otherwise in compliance with the terms of this Indenture and (b) such assumption, guarantee or other liability of such Restricted Subsidiary has been released by the holders of the other Indebtedness so guaranteed. Section 4.22. Capital Call Agreement. The Company shall have received the net cash proceeds from the equity contribution or purchase of its Capital Stock, as the case may be, to the extent required by, and upon the terms of, Section 2 (only to the extent such Section relates to the consolidated leverage ratio (as defined therein) requirement with respect to the four full fiscal quarter period commencing on March 23, 2003) of the Capital Call Agreement as in effect on the Issue Date and shall use such net cash proceeds to repay Indebtedness and/or purchase subordinated participations in obligations under the Credit Agreement, in each case, in compliance with the Capital Call Agreement as in effect on the Issue Date. Section 4.23. Existing Notes Covenants. This Section 4.23 will apply to the Notes at all times so long as the Existing Notes remain outstanding or in the event that the requisite consents from the holders of the Existing Notes have not been received to have the obligations of the Company released with respect to the sections described in the Existing Notes Indenture comparable to Sections 4.23(a) and 4.23(b) hereof. Notwithstanding the foregoing, this Section 4.23 shall not apply to the Notes if the comparable covenants in the Existing Notes Indenture are no longer applicable as a result of defeasance under the terms of the Existing Notes Indenture. (a) Limitation Upon Liens. The Company will not itself, and will not permit any Restricted Subsidiary to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become liable for or suffer to exist any Indebtedness secured -76- by a Lien on (i) any Principal Property of the Company or any Restricted Subsidiary or (ii) any shares of capital stock or Indebtedness of any Restricted Subsidiary (which Indebtedness is then held by the Company or any Restricted Subsidiary), without effectively providing that the Notes (together with, if the Company shall so determine, any other Indebtedness of the Company or such Restricted Subsidiary then existing or thereafter created which is not Subordinated Funded Debt) shall be secured equally and ratably with (or, at the option of the Company, prior to) such secured Indebtedness, so long as such secured Indebtedness shall be so secured, unless immediately thereafter, after giving effect thereto, the aggregate amount of all such secured Indebtedness plus all Attributable Debt of the Company and its Restricted Subsidiaries in respect of Sale and Leaseback Transactions (but excluding leases exempt from the prohibition of clauses (2) through (6) of Section 4.23(b) hereof) would not exceed 10% of Net Tangible Assets; provided, however, that this Section 4.23(a) shall not apply to, and there shall be excluded from secured Indebtedness in any computation under this Section 4.23(a), Indebtedness secured by: (1) Liens on, and limited to, property of or shares of capital stock or Indebtedness of any corporation existing at April 30, 2002 or at the time such corporation becomes a Restricted Subsidiary; (2) Liens in favor of the Company or any Restricted Subsidiary; (3) Liens in favor of any governmental body to secure progress, advance or other payments pursuant to any contract or provision of any statute; (4) (i) if made in the ordinary course of business, any Lien as security for the performance of any contract or undertaking not directly or indirectly in connection with the borrowing of money or the securing of Indebtedness, or (ii) any Lien with any governmental agency required or permitted to qualify the Company or any Restricted Subsidiary to conduct business, to maintain self-insurance or to obtain the benefits of any law pertaining to workmen's compensation, employment insurance, old age pensions, social security or similar matters; (5) Liens for taxes, assessment or governmental charges or levies if such taxes, assessments, governmental charges or levies shall not at the time be due and payable, or if the same thereafter can be paid without penalty, or if the same are being contested in good faith by appropriate proceedings; (6) Liens created by or resulting from any litigation or legal proceeding which at the time is currently being contested in good faith by appropriate proceedings, or Liens arising out of judgments or awards as to which the time for prosecuting an appeal or proceeding for review has not expired; -77- (7) Liens on, and limited to, property (including leasehold estates) or shares of capital stock or Indebtedness, existing at the time of acquisition thereof (including acquisition through merger or consolidation) or to secure the payment of all or any part of the purchase price thereof or construction thereon or to secure any Indebtedness incurred prior to, at the time of, or within 120 days after the latest of the acquisition, the completion of construction or the commencement of full operation of such property for the purpose of financing all or any part of the purchase price thereof or construction thereon; (8) Liens securing obligations issued by a state, territory or possession of the United States, or any political subdivision of any of the foregoing, or the District of Columbia, to finance the acquisition or construction or development of property, and on which the interest is not, in the opinion of tax counsel of recognized standing or in accordance with a ruling issued by the Internal Revenue Service, includible (in whole or in part) in gross income of the holder by reason of Section 103(a)(1) of the Internal Revenue Code (or any successor to such provision) as in effect at the time of the issuance of such obligations; (9) Liens created in connection with a project financed with, and created to secure, a Nonrecourse Obligation; or (10) any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in part, of any Lien referred to in the foregoing clauses (1) through (9), to the extent the Indebtedness secured by such Lien is not increased from the amount originally so secured, provided that such extension, renewal or replacement Lien shall be limited to all or a part of the same property or shares of capital stock or Indebtedness that secured the Lien extended, renewed or replaced (plus improvements on such property). (b) Limitation Upon Sale and Leaseback Transactions. Except as hereinafter provided, the Company will not itself, and will not permit any Restricted Subsidiary to, enter into any Sale and Leaseback Transaction; provided, however, that this Section 4.23(b) shall not apply to any Sale and Leaseback Transaction if: (1) the Company or such Restricted Subsidiary could create Indebtedness secured by a Lien pursuant to Section 4.23(a) hereof, excluding from secured Indebtedness in any computation under Section 4.23(a) hereof Indebtedness secured by Liens of the type described in clauses (1) through (10) thereof, on the Principal Property to be leased in an amount equal to the Attributable Debt with respect to such Sale and Leaseback Transaction without equally and ratably securing the Existing Notes and the Notes, or -78- (2) the Company or a Restricted Subsidiary, within 180 days after the sale or transfer shall have been made by the Company or by a Restricted Subsidiary, applies an amount equal to the greater of the net proceeds from the sale of the Principal Property leased pursuant to such arrangement or the fair market value of the Principal Property so leased at the time of entering into such arrangement (as determined in any manner approved by the applicable Board of Directors) to either (x) the retirement of Senior Funded Debt of the Company or Funded Debt of a Restricted Subsidiary; provided, however, that notwithstanding the foregoing, no retirement referred to in this clause (2) may be effected by payment at maturity or pursuant to any mandatory sinking fund payment or any mandatory prepayment provision, or (y) the purchase of other property which will constitute Principal Property of the Company or its Restricted Subsidiaries having a fair market value, in the opinion of the Board of Directors of the Company, at least equal to the fair market value of the Principal Property leased in such Sale and Leaseback Transaction, or (3) the lease in such Sale and Leaseback Transaction is for a period, including renewals, of no more than three years, or (4) the lease in such Sale and Leaseback Transaction secures or relates to obligations issued by a state, territory or possession of the United States, or any political subdivision of any of the foregoing, or the District of Columbia, to finance the acquisition or construction of property, and on which the interest is not, in the opinion of tax counsel of recognized standing or in accordance with a ruling issued by the Internal Revenue Service, includible (in whole or in part) in gross income of the holder by reason of Section 103(a)(1) of the Internal Revenue Code (or any successor to such provision) as in effect at the time of the issuance of such obligations, or (5) the lease payment obligation is created in connection with a project financed with, and such obligation constitutes, a Nonrecourse Obligation, or (6) such arrangement is between the Company and a Restricted Subsidiary or between Restricted Subsidiaries. For purposes of this Section 4.23, the following terms have the following meanings: "Attributable Debt" means, as to any particular lease under which the Company or any Restricted Subsidiary is at the time liable and at any date as of which the amount thereof is to be determined, the total net amount of rent required to be paid under that lease during its remaining term (including any period for which the lease has been extended or may, -79- at the option of the lessor, be extended), discounted from the respective due dates thereof to such date at a rate per year equal to the weighted average interest rate per year borne by the Existing Notes compounded semiannually. The net amount of rent required to be paid under any such lease for any such period shall be the aggregate amount of the rent payable by the lessee with respect to that period after excluding amounts required to be paid on account of maintenance and repairs, insurance, taxes, assessments, water rates and similar charges. In the case of any lease which is terminable by the lessee upon the payment of a penalty, the net amount shall also include the amount of the penalty, but no rent shall be considered as required to be paid under the lease subsequent to the first date upon which it may be so terminated. "Funded Debt" means (i) all Indebtedness of the Company and the Restricted Subsidiaries maturing on, or renewable or extendible at the option of the obligor to, a date more than one year from the date of the determination thereof that is or would be classified as long-term debt on a balance sheet prepared in accordance with generally accepted accounting principles (including Indebtedness under any revolving credit arrangement with banks), (ii) guarantees, direct or indirect, and other contingent obligations of the Company and the Restricted Subsidiaries in respect of, or to purchase or otherwise acquire or be responsible or liable for (through the investment of funds or otherwise) any Indebtedness of others (but not including contingent liabilities on customers' receivables sold with recourse) and (iii) amendments, renewals, extensions and refundings of any such Indebtedness. "Indebtedness" means, with respect to any Person, every obligation of such Person for money borrowed or evidenced by bonds, debentures, notes or other similar instruments, whether or not for money borrowed or given in connection with the acquisition of any business, properties or assets, including securities. "Lien" means, with respect to any property or assets, any mortgage, pledge, security interest, lien, conditional sale or other title retention agreement or other similar encumbrance. "Net Tangible Assets" means the net book value of all assets of the Company and the Restricted Subsidiaries, excluding any amount carried as assets for shares of capital stock held in treasury, debt discount and expense, investments in and advances to Subsidiaries other than Restricted Subsidiaries, goodwill, patents and trademarks, less all liabilities of the Company and of the Restricted Subsidiaries (except Funded Debt, minority interests in Restricted Subsidiaries, deferred taxes and general contingency reserves of the Company and of the Restricted Subsidiaries), all as determined on a consolidated basis in accordance with generally accepted accounting principles. "Nonrecourse Obligation" means indebtedness or lease payment obligations substantially related to (i) the acquisition of assets not previously owned by the Company or any of the Company's Restricted Subsidiaries or (ii) the financing of a project involving the -80- development or expansion of the Company's properties or any properties of the Restricted Subsidiaries, as to which the obligee with respect to such indebtedness or obligation has no recourse to the Company's general corporate funds or the general corporate funds of any of the Restricted Subsidiaries or any of the Company's assets or any assets of the Restricted Subsidiaries other than the assets that were acquired with the proceeds of such transaction or the project financed with the proceeds of such transaction (and funds generated by such assets or project) except pursuant to a covenant to pay to such obligee or to the obligor of such indebtedness or obligation an amount equal to all or a portion of the amount of any dividends received from such obligor within the previous twelve months. "Principal Property" means any manufacturing plant or processing facility, including the equipment constituting a part thereof, which is located within the United States or its territories or possessions, of the Company or a Restricted Subsidiary having a net book value exceeding 1% of Net Tangible Assets. "Restricted Subsidiary" means any Subsidiary of the Company, other than any Subsidiary that is engaged primarily in the management, development and sale or financing of real property. "Sale and Leaseback Transaction" of any Person means an arrangement with any bank, insurance company or other lender or investor, or to which any such bank, company, lender or investor is a party, providing for the leasing by the Company or any Restricted Subsidiary of any Principal Property that has been or is to be sold or transferred more than 180 days after the latest of the acquisition, completion of construction or commencement of full operation by the Company or any Restricted Subsidiary to such bank, insurance company, lender or investor, or to any Person to whom funds have been or are to be advanced by such bank, insurance company, lender or investor on the security of such Principal Property. "Senior Funded Debt" means all Funded Debt except Subordinated Funded Debt. "Subordinated Funded Debt" means any of the Company's unsecured Funded Debt that is expressly made subordinate and junior in rank and right of payment to the Existing Notes and the Notes in the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization or other similar proceedings relative to the Company or the Company's creditors, as such, or to the Company's property, or in the event of any proceedings for the Company's voluntary liquidation, dissolution or other winding up, whether or not involving insolvency or bankruptcy. "Subsidiary" means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, "voting stock" means stock that ordinarily has voting power for the election of di- -81- rectors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. ARTICLE V. SUCCESSORS Section 5.1. Merger, Consolidation and Sale of Assets. The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person, or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company's assets (determined on a consolidated basis for the Company and the Company's Restricted Subsidiaries), whether as an entirety or substantially as an entirety, to any Person unless: (1) either: (a) the Company shall be the surviving or continuing corporation; or (b) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company's Restricted Subsidiaries substantially as an entirety (the "Surviving Entity"): (x) shall be a corporation organized and validly existing under the laws of the United States or any State thereof or the District of Columbia; and (y) shall expressly assume, by supplemental indenture (in form and substance reasonably satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium, if any, and interest on all of the Notes and the performance of every covenant of the Notes, this Indenture and the Registration Rights Agreement on the part of the Company to be performed or observed; (2) immediately after giving effect to such transaction and the assumption contemplated by clause (1)(b)(y) above (including giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction), the Company or such Surviving Entity, as the case may -82- be, (a) shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction and (b) shall be able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to paragraph (a) of Section 4.9 hereof; (3) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (1)(b)(y) above (including, without limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing; and (4) the Company or the Surviving Entity shall have delivered to the Trustee an officers' certificate and an opinion of counsel, each stating that such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied. For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. Notwithstanding clauses (1), (2) and (3) of the first paragraph of this Section 5.1, the Company may merge with an Affiliate that is a Person that has no material assets or liabilities and which was organized solely for the purpose of reorganizing the Company in another jurisdiction. Each Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the terms of the Guarantee and this Indenture in connection with any transaction complying with the provisions of Section 4.10 hereof) will not, and the Company will not cause or permit any Guarantor to, consolidate with or merge with or into any Person other than the Company or any other Guarantor unless: (1) the entity formed by or surviving any such consolidation or merger (if other than the Guarantor) or to which such sale, lease, conveyance or other disposition shall have been made is a corporation organized and existing under the laws of the United States or any State thereof or the District of Columbia; (2) such entity assumes by supplemental indenture all of the obligations of the Guarantor on the Guarantee, this Indenture and the Registration Rights Agreement; -83- (3) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and (4) immediately after giving effect to such transaction and the use of any net proceeds therefrom on a pro forma basis, the Company could satisfy the provisions of clause (2) of the first paragraph of this Section 5.1. Any merger or consolidation of a Restricted Subsidiary with and into the Company (with the Company being the Surviving Entity) or another Guarantor need only comply with clause (4) of the first paragraph, or clause (1) of the fifth paragraph, as the case may be, of this Section 5.1. Section 5.2. Successor Corporation Substituted. Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section 5.1 hereof, the Surviving Entity shall succeed to and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such Surviving Entity had been named as the Company herein; provided, however, that the predecessor Company shall not be relieved from the obligation to pay the principal, Purchase Price or Redemption Price of or interest or Additional Interest, if any, on the Notes except in the case of a sale of all of the Company's assets that meets the requirements of Section 5.1 hereof. ARTICLE VI. DEFAULTS AND REMEDIES Section 6.1. Events of Default. Each of the following constitutes an "Event of Default": (a) the failure to pay interest on any Notes when the same becomes due and payable and the default continues for a period of 30 days (whether or not such payment shall be prohibited by Article X of this Indenture); (b) the failure to pay the principal of any Notes when such principal becomes due and payable, at maturity, upon redemption or otherwise (including the failure to make a payment to purchase Notes tendered pursuant to a Change of Control Offer or a Net Proceeds Offer) (whether or not such payment shall be prohibited by Article X of this Indenture); (c) a default in the observance or performance of any other covenant or agreement contained in this Indenture, which default continues for a period of 45 days -84- after the Company receives written notice specifying the default (and demanding that such default be remedied) from the Trustee or the Holders of at least 25% of the outstanding principal amount of the Notes (except in the case of a default with respect to Section 5.1 hereof, which will constitute an Event of Default with such notice requirement but without such passage of time requirement); (d) the failure to pay at final maturity (giving effect to any applicable grace periods and any extensions thereof) the stated principal amount of any Indebtedness of the Company or any Restricted Subsidiary of the Company, or the acceleration of the final stated maturity of any such Indebtedness (which acceleration is not rescinded, annulled or otherwise cured within 30 days of receipt by the Company or such Restricted Subsidiary of notice of any such acceleration) if the aggregate principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay principal at final stated maturity or which has been accelerated (in each case with respect to which the 30-day period described above has elapsed), aggregates $25.0 million or more at any time; provided that if such failure to pay shall be remedied, waived or extended within 30 days of receipt by the Company or such Restricted Subsidiary of notice of such acceleration, then any Default or Event of Default hereunder shall be deemed likewise to be remedied, waived or extended without further action by the Company; (e) one or more judgments in an aggregate amount in excess of $25.0 million shall have been rendered against the Company or any of its Restricted Subsidiaries and such judgments remain undischarged, unpaid or unstayed for a period of 60 days after such judgment or judgments become final and non-appealable; provided, however, that the rendering of any such judgment(s) shall not be an Event of Default under this clause (e) unless (i) the Company and its Restricted Subsidiaries which are subject to the order, as of the date of the issuance of such judgment(s), have at least $25.0 million in net assets located in such court's jurisdiction or (ii) a final and non-appealable order enforcing such judgment(s) is entered by a court of competent jurisdiction in a jurisdiction where the Company and its Restricted Subsidiaries subject to the order, as of the date of the entry of such order of enforcement, have at least $25.0 million in net assets located in such jurisdiction; (f) the Company or any Significant Subsidiary of the Company: (i) commences a voluntary case under any Bankruptcy Law, (ii) consents to the entry of an order for relief against it in an involuntary case, -85- (iii) consents to the appointment of a custodian or receiver of it or for all or substantially all of its property, (iv) makes a general assignment for the benefit of its creditors, (v) consents to or acquiesces in the institution of a bankruptcy or an insolvency proceeding against it, or (vi) takes any corporate action to authorize or effect any of the foregoing; (g) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (i) is for relief in an involuntary case against the Company or any Significant Subsidiary of the Company; (ii) appoints a custodian or receiver of the Company or any Significant Subsidiary or for all or substantially all of the property of any of the foregoing; (iii) orders the liquidation of the Company or any of its Significant Subsidiaries; and the order or decree remains unstayed and in effect for 60 days; or (h) any Guarantee of a Significant Subsidiary ceases to be in full force and effect or any Guarantee of a Significant Subsidiary is declared to be null and void and unenforceable or any Guarantee of a Significant Subsidiary is found to be invalid or any Guarantor that is a Significant Subsidiary denies its liability under its Guarantee (other than by reason of release of such Guarantor in accordance with the terms of this Indenture). Section 6.2. Acceleration. If any Event of Default (other than an Event of Default specified in clause (f) or (g) of Section 6.1 hereof with respect to the Company) shall occur and be continuing, the Trustee or the Holders of at least 25% in principal amount of outstanding Notes by written notice to the Company (and the Trustee, if such notice is given by such Holders) may declare the principal of and accrued and unpaid interest on all Notes to be due and payable immediately, which notice shall specify the respective Events of Default and that it is a "notice of acceleration" (the "Acceleration Notice"), and upon proper delivery of the Acceleration Notice, the entire principal amount of and accrued and unpaid interest and Additional Interest, if any, on the Notes (1) shall become immediately due and payable, or (2) if there are any amounts outstanding under the Credit Agreement, shall become immediately due and payable upon the first to occur of an acceleration under the Credit Agreement or 5 Business Days after receipt by the Company and the Representative under the Credit Agreement of such Acceleration Notice but only if such Event of Default is then continuing. -86- Notwithstanding the foregoing, if an Event of Default specified in clause (f) or (g) of Section 6.1 hereof with respect to the Company occurs and is continuing, then all unpaid principal of and premium, if any, and accrued and unpaid interest on all of the outstanding Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. At any time after a declaration of acceleration with respect to the Notes as described in the preceding paragraph, the Holders of not less than a majority in aggregate principal amount of the then outstanding Notes by written notice to the Company and the Trustee may, on behalf of the Holders of all of the Notes, rescind and cancel an acceleration and its consequences: (1) if the rescission would not conflict with any judgment or decree; (2) if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of the acceleration; (3) if, to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid; (4) if the Company has paid the Trustee its reasonable compensation and reimbursed the Trustee for its expenses, disbursements and advances; and (5) in the event of the cure or waiver of an Event of Default of the type described in clause (f) or (g) of Section 6.1 hereof, if the Trustee shall have received an Officers' Certificate and an Opinion of Counsel that such Event of Default has been cured or waived. No such rescission shall affect any subsequent Default or impair any right consequent thereto. Section 6.3. Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, interest or Additional Interest, if any, on the Notes or to enforce the performance of any provision of the Notes or this Indenture. The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding, and any recovery or judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and -87- advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Notes. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law. Section 6.4. Waiver of Past Defaults. The Holders of a majority in principal amount of the Notes may waive any existing Default or Event of Default under this Indenture, and its consequences, except a default in the payment of the principal of or interest on any Notes. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon. Section 6.5. Control by Majority. Holders of a majority in principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with applicable law or this Indenture that the Trustee reasonably determines may be unduly prejudicial to the rights of other Holders of Notes or that may subject the Trustee to personal liability and shall be entitled to the benefit of Sections 7.1(c)(iii) and (e) hereof. Section 6.6. Limitation on Suits. A Holder of a Note may pursue a remedy with respect to this Indenture or the Notes only if: (a) the Holder of a Note gives to the Trustee written notice of a continuing Event of Default; (b) the Holders of at least 25% in principal amount of the then outstanding Notes make a written request to the Trustee to pursue the remedy; (c) such Holder or Holders of Notes offer and, if requested, provide to the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense; (d) the Trustee does not comply with the request within 60 days after receipt of the request and the offer and, if requested, the provision of indemnity; and -88- (e) during such 60-day period the Holders of a majority in principal amount of the then outstanding Notes do not give the Trustee a direction inconsistent with the request. A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or priority over another Holder of a Note. Section 6.7. Rights of Holders of Notes To Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal of or premium, if any, interest or Additional Interest, if any, on the Note, on or after the respective due dates thereon (including in connection with an offer to repurchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the written consent of such Holder. Section 6.8. Collection Suit by Trustee. If an Event of Default specified in Section 6.l(a) or (b) occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Company for the whole amount of principal of, premium and Additional Interest, if any, and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and Additional Interest, if any, and such further amounts as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expense, disbursements and advances of the Trustee, its agents and counsel. Section 6.9. Notice. The Company shall provide an Officers' Certificate to the Trustee promptly upon any such Officer obtaining knowledge of any Default or Event of Default (provided that such Officers shall provide such certification at least annually whether or not such Officers know of any Default or Event of Default) that has occurred and, if applicable, describe such Default or Event of Default and the status thereof. Section 6.10. Trustee May File Proofs of Claim. The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents (including accountants, experts or such other processionals as the Trustee deems necessary, advisable or appropriate) and counsel and the Holders of the Notes allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and -89- distribute any money or other property payable or deliverable on any such claims, and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.7 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.7 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. Section 6.11. Priorities. If the Trustee collects any money pursuant to this Article, it shall pay out the money in the following order: First: to the Trustee, its agents and attorneys for amounts due under Section 7.7 hereof, including payment of all compensation, expense and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection; Second: to Holders of Notes for amounts due and unpaid on the Notes for principal, Purchase Price, Redemption Price and Additional Interest, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, Purchase Price, Redemption Price and Additional Interest, if any, and interest, respectively; and Third: to the Company, the Guarantors or to such party as a court of competent jurisdiction shall direct. The Trustee may fix a special record date and payment date for any payment to Holders of Notes pursuant to this Section 6.11. Section 6.12. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its -90- discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7 hereof, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes. ARTICLE VII. TRUSTEE Section 7.1. Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise thereof, as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs. (b) Except during the continuance of an Event of Default: (i) the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the TIA and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture or the TIA against the Trustee; and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, without investigation, as to the truth or the statements and the correctness of the opinions expressed therein, upon and statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee shall examine the certificates and opinions to determine whether or not they conform on their face to the requirements of this Indenture. (c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (i) this paragraph does not limit the effect of paragraph (b) of this Section; (ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and -91- (iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5 hereof. (d) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to this Section 7.1. (e) No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability. The Trustee shall be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, pursuant to the provisions of this Indenture, including, without limitation, Section 6.5 hereof, unless such Holder shall have offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense which might be incurred by it in compliance with such request or direction. (f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. Section 7.2. Rights of Trustee. (a) The Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document. (b) Before the Trustee acts or refrain from acting, it shall require an Officer's Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may consult with counsel of its own selection and the written advice of such counsel and Opinions of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. (c) The Trustee may act through its attorneys, accountants, experts and such other professionals as the Trustee deems necessary, advisable or appropriate and shall not be responsible for the misconduct or negligence of any attorney, accountant, expert or other such professional appointed with due care. (d) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture. -92- (e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficiently evidenced by a written order signed by two Officers of the Company. (f) The Trustee shall not be charged with knowledge of any Default or Event of Default under Section 6.1 hereof (other than under Section 6.1(a) (subject to the following sentence) or Section 6.1(b) hereof) unless either (i) a Responsible Officer shall have actual knowledge thereof, or (ii) the Trustee shall have received notice thereof in accordance with Section 13.2 hereof from the Company or any Holder of the Notes. The Trustee shall not be charged with knowledge of the Company's obligation to pay Additional Interest, or the cessation of such obligation, unless the Trustee receives written notice thereof from the Company or any Holder. (g) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder. The Trustee may request that the Company deliver an Officers' Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers' Certificate may be signed by any person specified as so authorized in any such certificate previously delivered and not superseded. Section 7.3. Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest within the meaning of the TIA it must eliminate such conflict within 90 days, apply (subject to the consent of the Company) to the Commission for permission to continue as trustee or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof. Section 7.4. Trustee's Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture, or the Notes, it shall not be accountable for the Company's use of the proceeds from the Notes or any money paid to the Company or upon the Company's direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or -93- any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication. Section 7.5. Notice of Defaults. If a Default or Event of Default occurs and is continuing, the Trustee shall mail to Holders of Notes a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default in payment on any Note (including the failure to make a mandatory repurchase pursuant hereto), the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Notes. Section 7.6. Reports by Trustee to Holder of the Notes. Within 60 days after each May 1 beginning with the May 1 following the date of this Indenture, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders of the Notes a brief report dated as of such reporting date that complies with TIA Section 313(a) (but if no event described in TIA Section 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also shall comply with TIA Section 313(b). The Trustee shall also transmit by mail all reports as required by TIA Section 313(c). A copy of each report at the time of its mailing to the Holders of Notes shall be mailed to the Company and filed with the Commission and each stock exchange on which the Notes are listed in accordance with TIA Section 313(d). The Company shall promptly notify the Trustee when the Notes are listed on any stock exchange. Section 7.7. Compensation, Reimbursement and Indemnity. The Company shall pay to the Trustee from time to time such compensation for its acceptance of this Indenture and the rendering by it of the services required hereunder as shall be agreed upon in writing by the Company and the Trustee. The Trustee's compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by or on behalf of it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee's attorneys, accountants, experts and such other professionals as the Trustee deems necessary, advisable or appropriate. The Company shall indemnify the Trustee and any predecessor Trustee against any and all losses, liabilities, claims, damages or expenses, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee), incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture (including its duties under Section 9.6 hereof), including the costs and expenses of enforcing -94- this Indenture or any Guarantee against the Company or a Guarantor (including this Section 7.7) and defending itself against or investigating any claim (whether asserted by the Company, any Guarantor, any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to its negligence or willful misconduct. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder. The Company shall defend any claim or threatened claim asserted against the Trustee, and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. The obligations of the Company under this Section 7.7 shall survive the resignation or removal of the Trustee, the satisfaction and discharge of this Indenture and the termination of this Indenture. To secure the Company's payment obligations in this Section 7.7, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal, Redemption Price or Purchase Price of or Additional Interest, if any, or interest on, particular Notes. Such Lien shall survive the resignation or removal of the Trustee, the satisfaction and discharge of this Indenture and the termination of this Indenture. When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.1(f) or (g) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law. Section 7.8. Replacement of Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee's acceptance of appointment as provided in this Section. The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Company. The Holders of Notes of a majority in principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in writing. The Company may remove the Trustee if: (a) the Trustee fails to comply with Section 7.10 hereof; -95- (b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law; (c) a custodian, receiver or public officer takes charge of the Trustee or its property for the purpose of rehabilitation, conversation or liquidation; or (d) the Trustee becomes incapable of acting. If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the date on which the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Company. If a successor Trustee does not take office within 30 days after the retiring trustee resigns or is removed, the retiring Trustee, the Company, or the Holders of Notes of at least 10% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction, in the case of the Trustee, at the expense of the Company, for the appointment of a successor Trustee. If the Trustee, after written request by any Holder of a Note who has been a bona fide holder of a Note or Notes for at least six months, fails to comply with Section 7.10, such Holder of a Note may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The Company shall mail a notice of its succession to Holder of the Notes. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.7 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the Company's obligations under Section 7.7 hereof shall continue for the benefit of the retiring Trustee. Section 7.9. Successor Trustee by Merger, Etc. If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation that is eligible under Section 7.10 hereof, the successor corporation without any further act shall be the successor Trustee. -96- Section 7.10. Eligibility; Disqualification. There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof (including the District of Columbia) that is authorized under such laws to exercise corporate trust power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $100 million as set forth in its most recent published annual report of condition. This Indenture shall always have a Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to TIA Section 310(b). Section 7.11. Preferential Collection of Claims Against Company. The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated therein. ARTICLE VIII. LEGAL DEFEASANCE AND COVENANT DEFEASANCE Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance. The Company may, at the option of its Board of Directors evidenced by a resolution set forth in an Officers' Certificate, at any time, elect to have either Section 8.2 or 8.3 hereof be applied to all outstanding Notes upon compliance with the conditions set forth below in this Article VIII. Section 8.2. Legal Defeasance and Discharge. Upon the Company's exercise under Section 8.1 hereof of the option applicable to this Section 8.2, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.4 hereof, be deemed to have been discharged from its obligations with respect to all outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to the "outstanding" only for the purposes of Section 8.5 hereof and the other Sections of this Indenture referred to in clauses (a) through (d) below, and to have satisfied all their other obligations under such Notes and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: -97- (a) the rights of Holders to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due; (b) the Company's obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payments; (c) the rights, powers, trust, duties and immunities of the Trustee and the Company's obligations in connection therewith; and (d) the Legal Defeasance provisions of this Article VIII. Subject to compliance with this Article VIII, the Company may exercise its option under this Section 8.2, notwithstanding the prior exercise of its option under Section 8.3 hereof. Section 8.3. Covenant Defeasance. Upon the Company's exercise under Section 8.1 hereof of the option applicable to this Section 8.3, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.4 hereof, be released from its obligations under the covenants contained in Sections 3.9, 3.10, 4.5, 4.7 through 4.12 and 4.14 through 4.23 hereof, both inclusive, and Section 5.1(2) with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document, and such omission to comply shall not constitute a Default or an Event of Default under Section 6.1 hereof, but, except as specified above the remainder of this Indenture and such Notes shall be unaffected thereby. In addition, upon the Company's exercise under Section 8.1 hereof of the option applicable to this Section 8.3, subject to the satisfaction of the conditions set forth in Section 8.4 hereof, Sections 6.1(c) through 6.1(h) hereof shall not constitute Events of Default. Section 8.4. Conditions to Legal or Covenant Defeasance. The following are the conditions precedent to the application of either Section 8.2 or 8.3 hereof to the outstanding Notes: -98- In order to exercise either Legal Defeasance or Covenant Defeasance: (1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders cash in U.S. dollars, non-callable U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest on the Notes on the stated date for payment thereof or on the applicable redemption date, as the case may be; (2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an opinion of counsel in the United States reasonably acceptable to the Trustee confirming that: (a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or (b) since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; (3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an opinion of counsel in the United States reasonably acceptable to the Trustee confirming that the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; (4) no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or an Event of Default resulting from the borrowing of funds to fund the deposit referred to in clause (1) above); (5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture (other than a Default or an Event of Default resulting from the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowings), the Credit Agreement or any other material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound; -99- (6) the Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and (7) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) above with respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for cancellation (1) have become due and payable or (2) will become due and payable on the maturity date within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company. Section 8.5. Deposited Money and U.S. Government Obligations To Be Held in Trust; Other Miscellaneous Provisions. Subject to Section 8.6 hereof, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.5 only, the "Trustee") pursuant to Section 8.4 hereof in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal or Redemption Price of, and Additional Interest, if any, interest on, the Notes, provided that such money need not be segregated from other funds except to the extent required by law. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or U.S. Government Obligations deposited pursuant to Section 8.4 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes. Anything in this Article VIII to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the request of the Company any money or U.S. Government Obligations held by it as provided in Section 8.4 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under -100- Section 8.4(a) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance. Section 8.6. Repayment to the Company. Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal, Redemption Price or Purchase Price of, or Additional Interest, if any, or interest on any Note and remaining unclaimed for two years after such amount has become due and payable shall be paid to the Company on its request or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter look only to the Company for payment thereof as a general creditor, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, at the expense of the Company, may cause to be published once, in The New York Times and The Wall Street Journal (national editions), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days after the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company. Section 8.7. Reinstatement. If the Trustee or Paying Agent is unable to apply any United States dollars or U.S. Government Obligations in accordance with Section 8.2 or 8.3 hereof, as the case may be, by reason of any order of judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Company and the Guarantors under this Indenture, and the Notes and the Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.2 or 8.3 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.2 or 8.3 hereof, as the case may be; provided, however, that, if the Company makes any payment with respect to any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent. ARTICLE IX. AMENDMENT, SUPPLEMENT AND WAIVER Section 9.1. Without Consent of Holders of Notes. Notwithstanding Section 9.2 of this Indenture, the Company, the Guarantors and the Trustee may amend or supplement this Indenture or the Notes without the consent of any Holder of a Note: -101- (a) to cure any ambiguity, defect or inconsistency so long as such changes do not, in the opinion of the Trustee, adversely affect the rights of any of the Holders in any material respect. (b) to provide for uncertificated Notes in addition to or in place of Certificated Notes; (c) to provide for the assumption of the Company's obligations to the Holders of the Notes in the case of a merger or consolidation or sale of all or substantially all of the Company's assets pursuant to Article V hereof; (d) to comply with the requirements of the Commission in order to effect or maintain the qualification of this Indenture under the TIA; (e) to add or release the Guarantees of Guarantors in compliance with this Indenture; or (f) to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the legal rights hereunder of any Holder of the Notes in any material respect. Upon the request of the Company, accompanied by a resolution of the Board (evidenced by an Officers' Certificate) authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 7.2 hereof, the Trustee shall join with the Company in the execution of any amended or supplemental Indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise. In formulating its opinion on such matters, the Trustee shall be entitled to rely on such evidence as it deems appropriate, including, without limitation, solely on an Opinion of Counsel. Section 9.2. With Consent of Holders of Notes. Except as provided below in this Section 9.2, the Company and the Trustee may amend or supplement this Indenture and the Notes may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a tender offer or exchange offer for the Notes), and, subject to Sections 6.2, 6.4 and 6.7 hereof, any existing Default or Event of Default or compliance with any provision of this Indenture or the Notes may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes (including consents obtained in connection with a tender offer or exchange offer for the Notes). -102- Without the consent of each Holder affected, an amendment or waiver may not (with respect to any Notes held by a non-consenting Holder): (1) reduce the amount of Notes whose Holders must consent to an amendment; (2) reduce the rate of or change or have the effect of changing the time for payment of interest, including defaulted interest, on any Notes; (3) reduce the principal of or change or have the effect of changing the fixed maturity of any Notes, or change the date on which any Notes may be subject to redemption or reduce the redemption price therefor, other than prior to the Company's obligation to purchase Notes under provisions relating to the Company's obligation to make and consummate a Change of Control Offer in the event of a Change of Control or to make and consummate a Net Proceeds Offer with respect to any Asset Sale; (4) make any Notes payable in money other than that stated in the Notes; (5) make any change in provisions of this Indenture protecting the right of each Holder to receive payment of principal of and interest on such Note on or after the due date thereof or to bring suit to enforce such payment, or permitting Holders of a majority in principal amount of Notes to waive Defaults or Events of Default; (6) between the date on which a Change of Control or an Asset Sale giving rise to the Company's obligation to make a Net Proceeds Offer occurs and the date on which the payments are made with respect to the related Change of Control Offer or Net Proceeds Offer, as the case may be, amend, change or modify in any material respect (A) the obligation of the Company to make and consummate a Change of Control Offer in the event of a Change of Control or make and consummate a Net Proceeds Offer with respect to Asset Sales that have been consummated or (B) any of the provisions or definitions with respect thereto; (7) modify or change any provision of this Indenture or the related definitions affecting the ranking of the Notes or subordination of any Guarantee in a manner which adversely affects the Holders in any material respect; or (8) release any Guarantor that is a Significant Subsidiary from any of its obligations under its Guarantee or this Indenture otherwise than in accordance with the terms of this Indenture. Upon the written request of the Company accompanied by a resolution of the Board (evidenced by an Officers' Certificate) authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the -103- Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of an Officers' Certificate and an Opinion of Counsel, the Trustee shall join with the Company in the execution of such amended or supplemental indenture unless such amended or supplemental indenture affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture. It shall not be necessary for the consent of the Holders of Notes under this Section 9.2 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof. No amendment of, or supplement or waiver to, this Indenture shall adversely affect the rights of the holders of any Guarantor Senior Debt under Article X hereof (including any defined terms as used therein) without the consent of each holder of Guarantor Senior Debt affected thereby. After an amendment, supplement or waiver under this Section 9.2 becomes effective, the Company shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental Indenture or waiver. Section 9.3. Compliance with Trust Indenture Act. Every amendment or supplement to this Indenture or the Notes shall be set forth in a amended or supplemental indenture that complies with the TIA as then in effect. Section 9.4. Revocation and Effect of Consents. Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder's Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and therefore binds every Holder. Section 9.5. Notation on or Exchange of Notes. The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Company in exchange for all Notes -104- may issue and the Trustee shall authenticate new Notes that reflect the amendment, supplement or waiver. Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver. Section 9.6. Trustee To Sign Amendment, Etc. The Trustee shall sign any amended or supplemental indenture authorized pursuant to this Article IX if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. The Company may not sign an amendment or supplemental Indenture until the Board approves such amendment or supplemental indenture. In executing any amended or supplemental indenture, the Trustee shall be entitled to receive, in addition to the documents required by Sections 13.4 and 13.5 hereof, and, subject to Section 7.1, shall be fully protected in relying upon, an Officers' Certificate and an Opinion of Counsel stating that (i) the execution of such amended or supplemental indenture is authorized or permitted by this Indenture, (ii) no Event of Default shall occur as a result of the execution of such Officers' Certificate or the delivery of such Opinion of Counsel and (iii) the amended or supplemental indenture complies with the terms of this Indenture. ARTICLE X. SUBORDINATION OF THE GUARANTEES Section 10.1. Guarantees Subordinated to Guarantor Senior Debt. Anything herein to the contrary notwithstanding, each of the Company and the Guarantors, for itself and its successors, and each Holder, by his or her acceptance of Guarantees, agrees that the payment by the Guarantors of all Obligations with respect to the Guarantees is subordinated in right of payment to the prior payment in full in cash or Cash Equivalents of all Obligations on Guarantor Senior Debt (including all Obligations with respect to the Credit Agreement). Notwithstanding the foregoing, payments and distributions made relating to the Guarantees pursuant to the trust described under Article VIII hereof shall not be so subordinated in right of payment so long as the payments into the trust were made in accordance with the requirements described under Article VIII hereof and did not violate the subordination provisions when they were made. This Article X shall constitute a continuing offer to all Persons who become holders of, or continue to hold, Guarantor Senior Debt, and such provisions are made for the benefit of the holders of Guarantor Senior Debt and such holders are made obligees hereunder and any one or more of them may enforce such provisions. Each such holder shall be deemed to have acquired such Guarantor Senior Debt in reliance upon the covenants and provisions contained in this Article X. -105- Section 10.2. Suspension of Payment When Guarantor Senior Debt Is in Default. (a) Unless Section 10.3 hereof shall be applicable, if any default occurs and is continuing in the payment when due (and such default has not been cured or waived), whether at maturity, upon any redemption, by declaration or otherwise, of any principal of, premium (if any) or interest on, unpaid drawings for letters of credit issued in respect of, unreimbursed payments with respect to bank guarantees issued in respect of or regularly accruing fees with respect to, any Guarantor Senior Debt (a "Payment Default"), then no payment or distribution of any kind or character shall be made by or on behalf of any Guarantor or any other Person on its or their behalf with respect to any Obligations on or relating to the Guarantees or to acquire any Notes for cash or property or otherwise. (b) Unless Section 10.3 hereof shall be applicable, if any other event of default (other than a Payment Default) occurs and is continuing with respect to any Guarantor Designated Senior Debt (as such event of default is defined in the instrument creating or evidencing such Guarantor Designated Senior Debt) permitting the holders of such Guarantor Designated Senior Debt then outstanding to accelerate the maturity thereof (a "Non-payment Default") and if the Representative for the respective issue of Guarantor Designated Senior Debt gives notice of the event of default to the Trustee stating that such notice is a payment blockage notice (a "Payment Blockage Notice"), then, unless and until all events of default have been cured or waived or have ceased to exist or a Responsible Officer of the Trustee receives at the Corporate Trust Office of the Trustee written notice thereof from the Representative for the respective issue of Guarantor Designated Senior Debt terminating the Payment Blockage Period, during the 180 days after the delivery of such Payment Blockage Notice (the "Payment Blockage Period"), neither any Guarantor nor any other Person on its behalf shall (x) make any payment or distribution of any kind or character with respect to any Obligations on or with respect to the Guarantees or (y) acquire any of the Notes for cash or property or otherwise. Notwithstanding anything herein to the contrary, (x) in no event will a Payment Blockage Period extend beyond 180 days from the date the applicable Payment Blockage Notice is received by the Trustee and (y) no new Payment Blockage Notice may be delivered unless and until 360 days have elapsed since the effectiveness of the immediately prior Payment Blockage Notice. For all purposes of this Section 10.2(b), no event of default which existed or was continuing on the date of the commencement of any Payment Blockage Period with respect to the Guarantor Designated Senior Debt shall be, or be made, the basis for the commencement of a second Payment Blockage Period by the Representative of such Guarantor Designated Senior Debt whether or not within a period of 360 days, unless such event of default shall have been cured or waived for a period of not less than 90 consecutive days (it being acknowledged that any subsequent action, or any breach of any financial covenants for a period commencing after the date of commencement of such Payment Blockage Period that, in either case, would give rise to an event of default pursuant to any provisions under which an event of default previously existed or was continuing shall constitute a new event of default for this purpose). -106- (c) In the event that, notwithstanding the foregoing, any payment shall be received by the Trustee or any Holder when such payment is prohibited by the foregoing provisions of this Section 10.2, such payment shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of Guarantor Senior Debt (pro rata to such holders on the basis of the respective amount of Senior Debt held by such holders) or their respective Representatives, as their respective interests may appear. The Trustee shall be entitled to rely on information regarding amounts then due and owing on the Guarantor Senior Debt, if any, received from the holders of Guarantor Senior Debt (or their Representatives) or, if such information is not received from such holders or their Representatives, from the Company and only amounts included in the information provided to the Trustee shall be paid to the holders of Guarantor Senior Debt. If payment of the Notes and Guarantees is accelerated because of an Event of Default, the Guarantors or the Trustee shall promptly notify the holders of the Guarantor Senior Debt or the Representative of such holders of the acceleration; provided that any failure to give such notice shall have no effect whatsoever on the subordination provisions contained herein. If any Guarantor Senior Debt is outstanding, such acceleration will not be effective until the time specified in Section 6.2. Nothing contained in this Article X shall limit the right of the Trustee or the Holders of Notes to take any action to accelerate the maturity of the Notes pursuant to Section 6.2 or to pursue any rights or remedies hereunder (subject, however, to the rights, if any, under this Article X, of the holders of Guarantor Senior Debt in respect of cash or other property of a Guarantor received upon the exercise of any such remedy); provided that all Guarantor Senior Debt thereafter due or declared to be due shall first be paid in full in cash or Cash Equivalents before the Holders are entitled to receive any payment of any kind or character with respect to Obligations on, or with respect to, the Guarantees. Section 10.3. Guarantees Subordinated to Prior Payment of All Guarantor Senior Debt on Dissolution, Liquidation or Reorganization of the Guarantors. (a) Upon any payment or distribution of assets of any Guarantor of any kind or character, whether in cash, property or securities, to creditors upon any total or partial liquidation, dissolution, winding-up, reorganization, assignment for the benefit of creditors or marshaling of assets of any Guarantor or in a bankruptcy, reorganization, insolvency, receivership or other similar proceeding relating to any Guarantor or its property, whether voluntary or involuntary, all Obligations due or to become due upon all Guarantor Senior Debt shall first be paid in full in cash or Cash Equivalents (including interest after the commencement of any bankruptcy or other like proceeding at the rate specified in the applicable Guarantor Senior Debt, whether or not such interest is an allowed claim in any such proceeding), before any payment or distribution of any kind or character is made on account of any Obligations on or relating to the Guarantees, or for the acquisition of any of the Notes for cash or property or -107- otherwise. Upon any such dissolution, winding-up, liquidation, reorganization, receivership or similar proceeding, any payment or distribution of assets of any Guarantor of any kind or character, whether in cash, property or securities, to which the Holders of the Notes or the Trustee under this Indenture would be entitled, except for the provisions hereof, shall be paid by the Guarantor or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders or by the Trustee under this Indenture if received by them, directly to the holders of Guarantor Senior Debt (pro rata to such holders on the basis of the respective amounts of Guarantor Senior Debt held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which any of such Guarantor Senior Debt may have been issued, as their respective interests may appear, for application to the payment of Guarantor Senior Debt remaining unpaid until all such Guarantor Senior Debt has been paid in full in cash or Cash Equivalents after giving effect to any concurrent payment, distribution or provision therefor to or for the holders of Guarantor Senior Debt. (b) To the extent any payment of Guarantor Senior Debt (whether by or on behalf of any Guarantor, as proceeds of security or enforcement of any right of set-off or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then, if such payment is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person, the Guarantor Senior Debt or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred. It is further agreed that any diminution (whether pursuant to court decree or otherwise, including without limitation for any of the reasons described in the preceding paragraph) of any Guarantor's obligation to make any distribution or payment pursuant to any Guarantor Senior Debt, except to the extent such diminution occurs by reason of the repayment (which has not been disgorged or returned) of such Guarantor Senior Debt in cash or Cash Equivalents, shall have no force or effect for purposes of the subordination provisions contained in this Article X, with any turnover of payments as otherwise calculated pursuant to this Article X to be made as if no such diminution had occurred. (c) In the event that, notwithstanding the foregoing, any payment or distribution of assets of any Guarantor of any kind or character, whether in cash, property or securities, shall be received by the Trustee or any Holder when such payment or distribution is prohibited by this Section 10.3, such payment or distribution shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of Guarantor Senior Debt (pro rata to such holders on the basis of the respective amount of Guarantor Senior Debt held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which any of such Guarantor Senior Debt may have been issued, as their respective interests may appear, for application to the payment of Guarantor Senior Debt remaining unpaid until all such Guarantor Senior Debt has been paid in full in cash or Cash -108- Equivalents, after giving effect to any concurrent payment, distribution or provision therefor to or for the holders of such Guarantor Senior Debt. (d) The consolidation of any Guarantor with, or the merger of any Guarantor with or into, another Person or the liquidation or dissolution of any Guarantor following the conveyance or transfer of all or substantially all of its assets, to another Person upon the terms and conditions provided in Article V hereof and as long as permitted under the terms of the Guarantor Senior Debt shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 10.3 if such other Person shall, as a part of such consolidation, merger, conveyance or transfer, assume the Guarantor's obligations hereunder in accordance with Article V hereof. Section 10.4. Payments May Be Paid Prior to Dissolution. Nothing contained in this Article X or elsewhere in this Indenture shall prevent (i) the Guarantors, except under the conditions described in Sections 10.2 and 10.3, from making payments at any time for the purpose of making payments of principal of and interest on the Notes, or from depositing with the Trustee any moneys for such payments, or (ii) in the absence of actual knowledge by a Responsible Officer of the Trustee that a given payment would be prohibited by Section 10.2 or 10.3, the application by the Trustee of any moneys deposited with it for the purpose of making such payments of principal of, and interest on, the Notes to the Holders entitled thereto unless at least two Business Days prior to the date upon which such payment would otherwise become due and payable a Responsible Officer shall have actually received the written notice provided for in the first sentence of Section 10.2(b) or in Section 10.7 or in the last sentence of this Section 10.4 (provided that, notwithstanding the foregoing, the subordination of the Guarantees to Guarantor Senior Debt shall not be affected and the Holders receiving any payments made in contravention of Section 10.2 and/or 10.3 (and the respective such payments) shall otherwise be subject to the provisions of this Article X). The Company shall give prompt written notice to the Trustee of any dissolution, winding-up, liquidation or reorganization of any Guarantor, although any delay or failure to give any such notice shall have no effect on the subordination provisions contained herein. Section 10.5. Holders To Be Subrogated to Rights of Holders of Guarantor Senior Debt. Subject to the payment in full in cash or Cash Equivalents of all Guarantor Senior Debt, the Holders of the Guarantees shall be subrogated to the rights of the holders of Guarantor Senior Debt to receive payments or distributions of cash, property or securities of any Guarantor applicable to the Guarantor Senior Debt until the Notes shall be paid in full; and, for the purposes of such subrogation, no such payments or distributions to the holders of the Guarantor Senior Debt by or on behalf of any Guarantor, or by or on behalf of the Holders by virtue of this Article X, which otherwise would have been made to the Holders shall, as between any Guarantor and the Holders, be deemed to be a payment by any Guarantor to or on account of the Guarantor Senior Debt, it being understood that the provisions of this Arti- -109- cle X are and are intended solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of Guarantor Senior Debt, on the other hand. Section 10.6. Obligations of Guarantors Unconditional. Nothing contained in this Article X or elsewhere in this Indenture or in the Guarantees is intended to or shall impair, as among the Guarantors, its creditors other than the holders of Guarantor Senior Debt, and the Holders, the obligation of the Guarantors, which is absolute and unconditional, to pay to the Holders the principal of and any interest on the Notes as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders and creditors of the Guarantors other than the holders of the Guarantor Senior Debt, nor shall anything herein or therein prevent the Holder of any Guarantee or the Trustee on its behalf from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, in respect of cash, property or securities of any Guarantor received upon the exercise of any such remedy. Section 10.7. Notice to Trustee. The Company shall give prompt written notice to the Trustee of any fact known to the Company which would prohibit the making of any payment to or by the Trustee in respect of the Guarantees pursuant to the provisions of this Article X, although any delay or failure to give any such notice shall have no effect on the subordination provisions contained herein. Regardless of anything to the contrary contained in this Article X or elsewhere in this Indenture, the Trustee shall not be charged with knowledge of the existence of any default or event of default with respect to any Guarantor Senior Debt or of any other facts which would prohibit the making of any payment to or by the Trustee unless and until a Responsible Officer of the Trustee shall have received at the Corporate Trust Office of the Trustee notice in writing from the Company or from a holder of Guarantor Senior Debt or a Representative therefor and, prior to the receipt of any such written notice, the Trustee shall be entitled to assume that no such facts exist (provided that, notwithstanding the foregoing, the Holders of the Guarantees receiving any payments made in contravention of Section 10.2 and/or 10.3 hereof (and the respective such payments) shall otherwise be subject to the provisions of this Article X). The Trustee shall be entitled to rely on the delivery to it of any notice pursuant to this Section 10.7 to establish that such notice has been given by a holder of Guarantor Senior Debt (or a Representative thereof). In the event that the Trustee determines in good faith that any evidence is required with respect to the right of any Person as a holder of Guarantor Senior Debt to participate in any payment or distribution pursuant to this Article X, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amounts of Guarantor Senior Debt held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Per- -110- son under this Article X, and if such evidence is not furnished the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. Section 10.8. Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets of any Guarantor referred to in this Article X, the Trustee, subject to the provisions of Article VII hereof, and the Holders of the Guarantees shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any insolvency, bankruptcy, receivership, dissolution, winding-up, liquidation, reorganization or similar case or proceeding is pending, or upon a certificate of the receiver, trustee in bankruptcy, liquidating trustee, assignee for the benefit of creditors, agent or other person making such payment or distribution, delivered to the Trustee or the Holders of the Guarantees, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Guarantor Senior Debt and other Indebtedness of the Guarantors, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article X. Section 10.9. Trustee's Relation to Guarantor Senior Debt. The Trustee and any agent of the Guarantors or the Trustee shall be entitled to all the rights set forth in this Article X with respect to any Guarantor Senior Debt which may at any time be held by it in its individual or any other capacity to the same extent as any other holder of Guarantor Senior Debt and nothing in this Indenture shall deprive the Trustee or any such agent of any of its rights as such holder. With respect to the holders of Guarantor Senior Debt, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article X, and no implied covenants or obligations with respect to the holders of Guarantor Senior Debt shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Guarantor Senior Debt. Whenever a distribution is to be made or a notice given to holders or owners of Guarantor Senior Debt, the distribution may be made and the notice may be given to their Representative, if any. Section 10.10. Subordination Rights Not Impaired by Acts or Omissions of the Guarantors or Holders of Guarantor Senior Debt. No right of any present or future holders of any Guarantor Senior Debt to enforce subordination as provided herein shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Guarantors or by any act or failure to act by any such holder, or by any noncompliance by the Guarantors with the terms of this Indenture, re- -111- gardless of any knowledge thereof which any such holder may have or otherwise be charged with. Without in any way limiting the generality of the foregoing paragraph, the holders of Guarantor Senior Debt may, at any time and from time to time, without the consent of or notice to the Trustee or the Holders of the Guarantees, without incurring responsibility to the Trustee or the Holders of the Guarantees and without impairing or releasing the subordination provided in this Article X or the obligations hereunder of the Holders of the Guarantees to the holders of the Guarantor Senior Debt, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Guarantor Senior Debt, or otherwise amend or supplement in any manner Guarantor Senior Debt, or any instrument evidencing the same or any agreement under which Guarantor Senior Debt is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Guarantor Senior Debt; (iii) release any Person liable in any manner for the payment or collection of Guarantor Senior Debt; and (iv) exercise or refrain from exercising any rights against the Guarantors and any other Person. Section 10.11. Securityholders Authorize Trustee To Effectuate Subordination of Guarantees. Each Holder of Guarantees by its acceptance of them authorizes and expressly directs the Trustee on its behalf to take such action as may be necessary or appropriate to effectuate, as between the holders of Guarantor Senior Debt and the Holders of Guarantees, the subordination provided in this Article X, and appoints the Trustee its attorney-in-fact for such purposes, including, in the event of any dissolution, winding-up, liquidation or reorganization of any Guarantor (whether in bankruptcy, insolvency, receivership, reorganization or similar proceedings or upon an assignment for the benefit of credits or otherwise) tending towards liquidation of the business and assets of any Guarantor, the filing of a claim for the unpaid balance of its Guarantees and accrued interest in the form required in those proceedings. If the Trustee does not file a proper claim or proof of debt in the form required in such proceeding prior to 30 days before the expiration of the time to file such claim or claims, then the holders of the Guarantor Senior Debt or their Representative are or is hereby authorized to have the right to file and are or is hereby authorized to file an appropriate claim for and on behalf of the Holders of said Guarantees. Nothing herein contained shall be deemed to authorize the Trustee or the holders of Guarantor Senior Debt or their Representative to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Guarantees or the rights of any Holder thereof, or to authorize the Trustee or the holders of Guarantor Senior Debt or their Representative to vote in respect of the claim of any Holder in any such proceeding. -112- Section 10.12. This Article X Not To Prevent Events of Default. The failure to make a payment on account of principal of or interest on the Notes by reason of any provision of this Article X will not be construed as preventing the occurrence of an Event of Default. Section 10.13. Trustee's Compensation Not Prejudiced. Nothing in this Article X will apply to amounts due to the Trustee pursuant to other sections of this Indenture. ARTICLE XI. GUARANTEE Section 11.1. Unconditional Guarantee. Each Guarantor hereby unconditionally guarantees (such guarantee to be referred to herein as a "Guarantee"), on a senior subordinated basis jointly and severally, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, the Notes or the obligations of the Company hereunder or thereunder, that: (i) the principal of and interest on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration or otherwise and interest on the overdue principal, if any, and interest on any interest, to the extent lawful, of the Notes and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or of any such other obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise, subject, however, in the case of clauses (i) and (ii) above, to the limitations set forth in Section 11.3. Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, and action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Guarantee will not be discharged except by complete performance of the obligations contained in the Notes, this Indenture and in this Guarantee. If any Holder or the Trustee is required by any court or otherwise to return to the Company, any Guarantor, or any custodian, trustee, liquidator or other similar official acting in -113- relation to the Company or any Guarantor, any amount paid by the Company or any Guarantor to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor further agrees that, as between each Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Article VI, such obligations (whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purpose of this Guarantee. The obligations of each Guarantor to the Holders of the Guarantees and to the Trustee pursuant to the Guarantee of such Guarantor and this Indenture are expressly subordinate and subject in right of payment to the prior payment in full in cash or Cash Equivalents of all Guarantor Senior Debt of such Guarantor, to the extent and in the manner provided in Article X hereof. Section 11.2. Severability. In case any provision of this Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 11.3. Limitation of Guarantor's Liability. Each Guarantor and by its acceptance hereof each Holder hereby confirms that it is the intention of all such parties that the guarantee by such Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or conveyance for purposes of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law. To effectuate the foregoing intention, the Holders and such Guarantor hereby irrevocably agree that the obligations of such Guarantor under the Guarantee shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor (including, without limitation, all Guarantor Senior Debt of such Guarantor) and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee, result in the obligations of such Guarantor under the Guarantee not constituting such fraudulent transfer or conveyance. Section 11.4. Release of Guarantor. (a) The Guarantee of a Guarantor will be automatically and unconditionally released without any action on the part of the Trustee or the Holders of the Notes: (1) in connection with any sale or other disposition of all or substantially all of the assets of that Guarantor (including, without limitation, by way of merger or consolidation), if the Company applies the Net Cash Proceeds of that sale or other disposition in accordance with the applica- -114- ble provisions of this Indenture; (2) in the event all of the Capital Stock of a Guarantor is sold by the Company in compliance with clauses (1) and (2) of Section 4.10(A) hereof, if the Company applies the Net Cash Proceeds of that sale in accordance with the applicable provisions of this Indenture; (3) if the Company designates a Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary in accordance with the applicable provisions of this Indenture; or (4) upon the payment in full of the Notes. In addition, concurrently with any Legal Defeasance or Covenant Defeasance, the Guarantors shall be released from all of their Obligations under their respective applicable Guarantees. (b) The Trustee shall deliver an appropriate instrument evidencing such release upon receipt of a request by the Company accompanied by an Officers' Certificate and Opinion of Counsel certifying as to the compliance with this Section 11.4. Section 11.5. Immediate Payment. Each Guarantor agrees to make immediate payment to the Trustee on behalf of the Holders of all Obligations due and owing or payable to the respective Holders upon receipt of a demand for payment therefor by the Trustee to such Guarantor in writing. Section 11.6. Waiver of Subrogation. Until all Obligations are paid in full, each Guarantor hereby irrevocably waives any claims or other rights which it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of such Guarantor's obligations under the Guarantee and this Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, indemnification, and any right to participate in any claim or remedy of any Holder against the Company, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from the Company, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim or other rights. If any amount shall be paid to any Guarantor in violation of the preceding sentence and the Notes shall not have been paid in full, such amount shall have been deemed to have been paid to such Guarantor for the benefit of, and held in trust for the benefit of, the Holders, and shall, subject to the provisions of Article X hereof, forthwith be paid to the Trustee for the benefit of such Holders to be credited and applied upon the Notes, whether matured or unmatured, in accordance with the terms of this Indenture. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the waiver set forth in this Section 11.6 is knowingly made in contemplation of such benefits. -115- Section 11.7. Execution of Guarantee. To evidence their guarantee to the Holders set forth in this Article XI, the Guarantors hereby agree to execute the Guarantee in substantially the form attached hereto as Exhibit C, which shall be endorsed on each Note ordered to be authenticated and delivered by the Trustee. Each Guarantor hereby agrees that its Guarantee set forth in this Article XI shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Guarantee. Each such Guarantee shall be signed on behalf of each Guarantor by one of its authorized Officers prior to the authentication of the Note on which it is endorsed, and the delivery of such Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of such Guarantee on behalf of such Guarantor. Such signatures upon the Guarantee may be by manual or facsimile signature of such officers and may be imprinted or otherwise reproduced on the Guarantee, and in case any such officer who shall have signed the Guarantee shall cease to be such officer before the Note on which such Guarantee is endorsed shall have been authenticated and delivered by the Trustee or disposed of by the Company, such Note nevertheless may be authenticated and delivered or disposed of as though the Person who signed the Guarantee had not ceased to be such officer of the Guarantor. Section 11.8. Waiver of Stay, Extension or Usury Laws. Each Guarantor covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive each such Guarantor from performing its Guarantee as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture; and (to the extent that it may lawfully do so) each such Guarantor hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. ARTICLE XII. SATISFACTION AND DISCHARGE Section 12.1. Satisfaction and Discharge. This Indenture will be discharged and will cease to be of further effect (except as set forth below) and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture when: -116- (1) either (a) all the Notes theretofore authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid as provided in Section 2.7 and Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust) have been delivered to the Trustee for cancellation; or (b) all Notes not theretofore delivered to the Trustee for cancellation (1) have become due and payable or (2) will become due and payable within one year, or are to be called for redemption within one year, under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company has irrevocably deposited or caused to be deposited with the Trustee funds in an amount sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of maturity or redemption, as the case may be, together with irrevocable instructions from the Company directing the Trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be; (2) the Company has paid all other sums payable under this Indenture by the Company; and (3) the Company has delivered to the Trustee an officers' certificate and an opinion of counsel stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the Company's obligations in Sections 2.3, 2.4, 2.6, 2.7, 2.11, 7.7, 7.8, 13.2, 13.3 and 13.4, and the Trustee's and Paying Agent's obligations in Section 12.2 shall survive until the Notes are no longer outstanding. Thereafter, only the Company's obligations in Section 7.7 shall survive. Section 12.2. Application of Trust. All money deposited with the Trustee pursuant to Section 12.1 shall be held in trust and, at the written direction of the Company, be invested prior to maturity in U.S. Government Obligations, and applied by the Trustee in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for the payment of which money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law. -117- ARTICLE XIII. MISCELLANEOUS Section 13.1. Trust Indenture Act Controls. If any provision hereof limits, qualifies or conflicts with a provision of the TIA or another provision that would be required or deemed under such Act to be part of and govern this Indenture if this Indenture were subject thereto, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be. Section 13.2. Notices. Any notice or communication by the Company or the Trustee to others is duly given if in writing and delivered in Person or mailed by first class mail (registered or certified, return receipt requested), telex, telecopier or overnight air courier guaranteeing next day delivery, to the others' address: If to the Company: Dole Food Company, Inc. One Dole Drive Westlake Village, California 91363 Attention: General Counsel Fax: (818) 879-6654 With a copy to: Paul, Hastings, Janofsky & Walker LLP 695 Town Center Drive Costa Mesa, California 92626-1924 Attention: Peter J. Tennyson Fax: (714) 979-1921 -118- If to the Trustee: Wells Fargo Bank, National Association Attention: Corporate Trust Department 707 Wilshire Boulevard 17th Floor Los Angeles, California 90017 Fax: (213) 614-3355 The Company or the Trustee, by notice to the others (and to each Representative of Guarantor Designated Senior Debt known to it to be then outstanding) may designate additional or different addresses for subsequent notices or communications. All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery. Any notice or communication to a Holder shall be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Any notice or communication shall also be so mailed to any Person described in TIA Section 313(c), to the extent required by the TIA. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the address receives it. If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time. Section 13.3. Communication by Holders of Notes with Other Holders of Notes. Holders may communicate pursuant to TIA Section 312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA Section 312(c). Section 13.4. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company and/or any Guarantor to the Trustee to take any action under this Indenture, the Company and/or any Guarantor shall furnish to the Trustee: -119- (a) an Officers' Certificate in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and (b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied. Section 13.5. Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA Section 314(e) and shall include: (a) a statement that the Person making such certificate or opinion has read such covenant or condition; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (c) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been satisfied; and (d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied. Section 13.6. Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions. Section 13.7. No Personal Liability of Directors, Officers, Employees and Stockholders. No past, present or future director, officer, employee, incorporator, agent, stockholder or Affiliate of the Company, as such, shall have any liability for any obligations of the Company under the Notes or this Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. No past, present or future director, officer, employee, incorporator, agent, stockholder or Affiliate of any of the Guarantors, as such, shall have any liability for any obligations of the Guarantors under the Guarantees or this Indenture -120- or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes and Guarantees by accepting a Note and a Guarantee waives and releases all such liabilities. The waiver and release are part of the consideration for issuance of the Notes and the Guarantees. Such waiver may not be effective to waive liabilities under the federal securities law and it is the view of the Commission that such a waiver is against public policy. Section 13.8. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial. THIS INDENTURE, THE GUARANTEES AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. THE COMPANY AND EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE GUARANTEES AND THE NOTES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY AND EACH GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THAT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY HOLDER OF THE NOTES TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY OR ANY GUARANTOR IN ANY OTHER JURISDICTION. Section 13.9. No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture. -121- Section 13.10. Successors. All agreements of the Company in this Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors. Section 13.11. Severability. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 13.12. Counterpart Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Section 13.13. Table of Contents, Headings, Etc. The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture, which have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof. Section 13.14. Qualification of Indenture. The Company shall qualify this Indenture under the TIA in accordance with the terms and conditions of the Registration Rights Agreement and shall pay all reasonable costs and expenses (including attorneys' fees for the Company, the Trustee and the Holders of the Notes) incurred in connection therewith, including, but not limited to, costs and expenses of qualification of this Indenture and the Notes and printing this Indenture and the Notes. The Trustee shall be entitled to receive from the Company any such Officers' Certificates, Opinions of Counsel or other documentation as it may reasonably request in connection with any such qualification of this Indenture under the TIA. [Signatures on following page] -122- SIGNATURES DOLE FOOD COMPANY, INC. By: /s/ Lawrence A. Kern ---------------------------------- Name: Lawrence A. Kern Title: President and COO WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee By: /s/ Frank McDonald ---------------------------------- Name: Frank McDonald Title: Vice President -123- THE GUARANTORS NAMED IN SCHEDULE A ATTACHED HERETO By: /s/ C. Michael Carter ---------------------------------- Name: C. Michael Carter Title: Vice President SCHEDULE A Calazo Corporation AG 1970, Inc. AG 1971, Inc. AG 1972, Inc. Alyssum Corporation Barclay Hollander Corporation Bud Antle, Inc. Calicahomes, Inc. California Polaris, Inc. Dole ABPIK, Inc. Dole Arizona Dried Fruit and Nut Company Dole Asia, Inc. 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 Visage, Inc. E. T. Wall Company Earlibest Orange Association, Inc. Fallbrook Citrus Company, Inc. Lindero Headquarters Company, Inc. Lindero Property, Inc. Oceanview Produce Company Prairie Vista, Inc. Royal Packing Co. Veltman Terminal Co. Bananera Antillana (Colombia), Inc. Clovis Citrus Association Delphinium Corporation Dole Europe Company Dole Foods Flight Operations, Inc. Dole Fresh Flowers, Inc. Dole Northwest, Inc. Dole Sunfresh Express, Inc. Standard Fruit and Steamship Company Standard Fruit Company Sun Country Produce, Inc. -2- West Foods, Inc. Cool Advantage, Inc. Cool Care, Inc. Flowernet Inc. Saw Grass Transport, Inc. Blue Anthurium, Inc. Cerulean, Inc. Dole Diversified, Inc. Dole Land Company, Inc. Dole Packaged Foods Corporation Intervest, Inc. La Petite d'Agen, Inc. MK Development, Inc. Malaga Company, Inc. Muscat, Inc. Oahu Transport Company, Limited Wahiawa Water Company, Inc. Waialua Sugar 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. (DOCE) Dole Ocean Liner Express, Inc. Renaissance Capital Corporation Sun Giant, Inc. DNW Services Company Pacific Coast Truck Company Pan-Alaska Fisheries, Inc. EXHIBIT A FORM OF SERIES A NOTE (Face of Note) DOLE FOOD COMPANY, INC. 8-7/8% SENIOR NOTE DUE 2011 THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO ANYONE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UN- DER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO DOLE FOOD COMPANY, INC. OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT, AN "ACCREDITED INVESTOR") THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS NOTE), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF DOLE FOOD COMPANY, INC. SO REQUESTS), OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND DOLE FOOD COMPANY, INC. SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. A-2 DOLE FOOD COMPANY, INC. 8-7/8% SENIOR NOTE DUE 2011 CUSIP No.______________________ No._______________ $______________________________ Interest Payment Dates: March 15 and September 15 Record Dates: March 1 and September 1 DOLE FOOD COMPANY, INC., a Delaware corporation (the "Company," which term includes any successor corporation under the indenture hereinafter referred to ), for value received, promises to pay to ____________________________________________________ or registered assigns, the principal sum of _____________________ Dollars on March 15, 2011. Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as set forth at this place. Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefits under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Company has caused this Note to be duly executed under its corporate seal. [SEAL] Dated: DOLE FOOD COMPANY, INC. By: ________________________________________ Name: Title: By: ________________________________________ Name: Title: A-3 This is one of the Notes referred to in the within-mentioned Indenture: WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee By: _________________________________ Name: Title: A-4 (Back of Note) 8-7/8% Senior Notes due 2011 Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated. 1. Interest. The Company promises to pay interest on the principal amount of this Note at the rate of 8-7/8% per annum from the date of original issuance until maturity and shall pay the Additional Interest pursuant to Section 4 of the Registration Rights Agreement referred below. The Company will pay interest and Additional Interest semi-annually on March 15 and September 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each an "Interest Payment Date"). Interest on the Note will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided, further, that the first Interest Payment Date with respect to a Note issued on the Issue Date shall be September 15, 2003. The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue payments of the principal, Purchase Price and Redemption Price of this Note from time to time on demand at a rate that is 1% per annum in excess of the rate then in effect; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest and Additional Interest, if any, (without regard to any applicable grace periods) hereon from time to time on demand at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months. 2. Method of Payment. The Company will pay interest on the Notes (except defaulted interest) and Additional Interest, if any, to the Persons who are registered Holders of Notes at the close of business on March 1 and September 1 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. Any such installment of interest or Additional Interest, if any, not punctually paid or duly provided for shall forthwith cease to be payable to the registered Holders on such Interest Payment Date, and may be paid to the registered Holders at the close of business on a special interest payment date to be fixed by the Trustee for the payment of such defaulted interest, notice whereof shall be given to the registered Holders not less than 10 days prior to such special interest payment date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. The Notes will be payable as to principal, Redemption Price, Pur- A-5 chase Price, interest and Additional Interest, if any, by wire transfer of immediately available funds. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. 3. Paying Agent and Registrar. Initially, Wells Fargo Bank, National Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company may act in any such capacity. 4. Indenture and Guarantees. The Company issued $475 million in aggregate principal amount of the Notes under an Indenture dated as of March 28, 2003 (the "Indenture") between the Company, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.C. Code Sections 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. The Notes are general obligations of the Company. Payment on each Note is guaranteed on a senior subordinated basis, jointly and severally, by the Guarantors pursuant to Article XI of the Indenture. The Guarantee of any Guarantor is subordinated in right of payment, in the manner and to the extent set forth in the Indenture, to the prior payment in full in cash or Cash Equivalents of all Guarantor Senior Debt of such Guarantor, whether outstanding on the date of the Indenture or thereafter created, incurred, assumed or guaranteed. Each Holder by his acceptance hereof agrees to be bound by such provisions and authorizes and expressly directs the Trustee, on his behalf, to take such action as may be necessary or appropriate to effectuate the subordination provided for in the Indenture and appoints the Trustee his attorney-in-fact for such purposes. 5. Optional Redemption. The Company may redeem any or all of the Notes at any time on or after March 15, 2007, upon not less than 30 nor more than 60 days' prior notice in amounts of $1,000 or an integral multiple thereof at the Redemption Prices (expressed as a percentage of the principal amount) set forth below, if redeemed during the 12-month period beginning March 15 of the years indicated below:

Redemption Year Price - ---- ---------- 2007............................................... 104.438% 2008............................................... 102.219% 2009 and thereafter................................ 100.000%

in each case together with accrued and unpaid interest and Additional Interest, if any, to the Redemption Date. A-6 If less than all the Notes are to be redeemed, the Trustee will select the particular Notes or portions thereof to be redeemed by lot, pro rata or by any other method the Trustee shall deem fair and reasonable. 6 Optional Redemption Upon Equity Offerings. In the event the Company completes one or more Equity Offerings on or before March 15, 2006, the Company, at its option, may use the net cash proceeds from any such Equity Offering to redeem up to 35% of the original principal amount of the Notes (a "Special Redemption") at a Redemption Price of 108.875% of the principal amount, together with accrued and unpaid interest and Additional Interest (if any), to the date of redemption, provided, however, that at least 65% of the original principal amount of the Notes initially issued under the Indenture will remain outstanding immediately after each such redemption; and provided, further, that each such redemption shall occur within 90 days after the date of the closing of the applicable Equity Offering. If less than all the Notes are to be redeemed, the Trustee will select the particular Notes or portions thereof to be redeemed by lot, only on a pro rata basis or on as nearly a pro rata basis as is practicable (subject to DTC procedures). 7. Mandatory Redemption. Except as set forth in Paragraph 9 below with respect to repurchases of Notes in certain events, the Company shall not be required to make mandatory redemption payments with respect to the Notes. 8. Notice of Redemption. Subject to the provisions of the Indenture, a notice of redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder whose Notes are to be redeemed at its registered address. Notes in denominations larger than $1,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date interest ceases to accrue on Notes or portions thereof called for redemption. 9. Repurchase at Option of Holder. (a) If there is a Change of Control, the Company shall be required to make an offer (a "Change of Control Offer") to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of each Holder's Notes at a Purchase Price equal to 101% of the principal amount thereof plus accrued and unpaid interest and Additional Interest, if any, to the date of repurchase, in accordance with the procedures set forth in the Indenture. Subject to the terms and conditions set forth in the Indenture, within 30 days following any Change of Control, the Company shall mail a notice to each Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture. (b) Pending the final application of such Net Cash Proceeds, the Company may temporarily reduce borrowings under the Credit Agreement or any other revolving credit facility, if any. On the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net A-7 Cash Proceeds relating to such Asset Sale as set forth in clauses (3)(a), (3)(b) and (3)(c) of paragraph (A) of Section 4.10 of the Indenture, or, in the event that a definitive agreement has been entered into prior to such 366th day pursuant to which the Net Cash Proceeds are to be applied on the later of the 366th day and the 121st day after the execution of such agreement (each, a "Net Proceeds Offer Trigger Date"), such aggregate amount of Net Cash Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(a), (3)(b) and (3)(c) of paragraph (A) of Section 4.10 of the Indenture (each, a "Net Proceeds Offer Amount") shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the "Net Proceeds Offer") to all Holders and, to the extent required by the terms of any Pari Passu Debt, an offer to purchase to all holders of such Pari Passu Debt, on a date (the "Net Proceeds Offer Payment Date") not less the 30 nor more then 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of any such Pari Passu Debt) on a pro rata basis, that amount of Notes (and Pari Passu Debt) equal to the Net Proceeds Offer Amount at a price equal to 100% of the principal amount of the Notes (and Pari Passu Debt) to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder as of the date of such conversion or disposition and the Net Cash Proceeds thereof shall be applied in accordance with this covenant. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in the Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Debt properly tender such Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Debt will be purchased on a pro rata basis based on aggregate amounts of Notes and Pari Passu Debt tendered (and the Trustee shall select the tendered Notes of tendering Holders on a pro rata basis based on the amount of Notes tendered). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. If any Net Cash Proceeds remain after the consummation of any Net Proceeds Offer, the Company may use those Net Cash Proceeds for any purpose not otherwise prohibited by the Indenture. Upon completion of each Net Proceeds Offer, the Net Proceeds Offer Amount will be reset at zero. 10. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in denominations of $1,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes A-8 and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, it need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date. 11. Persons Deemed Owners. The registered Holder of a Note may be treated as its owner for all purposes. 12. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture and the Notes may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the then outstanding Notes, and any existing default or compliance with any provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes. Without the consent of any Holder of a Note, the Indenture and the Notes may be amended or supplemented to cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes in addition to or in place of certificated Notes, to provide for the assumption of the Company's obligations to Holders of the Notes in case of a merger or consolidation, to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the legal rights under the Indenture of any such Holder in any material respect, or to comply with the requirements of the Commission in order to effect or maintain the qualification of the Indenture under the Trust Indenture Act. 13. Defaults and Remedies. Events of Default include: (1) the failure to pay interest on any Notes when the same becomes due and payable and the default continues for a period of 30 days (whether or not such payment shall be prohibited by the subordination provisions of the Indenture); (2) the failure to pay the principal of any Notes when such principal becomes due and payable, at maturity, upon redemption or otherwise (including the failure to make a payment to purchase Notes tendered pursuant to a Change of Control Offer or a Net Proceeds Offer) (whether or not such payment shall be prohibited by the subordination provisions of the Indenture); (3) a default in the observance or performance of any other covenant or agreement contained in the Indenture which default continues for a period of 45 days after the Company receives written notice specifying the default (and demanding that such default be remedied) from the Trustee or the Holders of at least 25% of the outstanding principal amount of the Notes (except in the case of a default with respect to Section 5.1 of the Indenture, which will constitute an Event of Default with such notice requirement but without such passage of time requirement); (4) the failure to pay at final maturity (giving effect to any applicable grace periods and any extensions thereof) the stated principal amount of any Indebtedness of the Company or any Restricted Subsidiary of the Company, or the acceleration of the final stated maturity of any such Indebtedness (which acceleration is not rescinded, annulled or otherwise cured within 30 days of receipt by the Company or such Re- A-9 stricted subsidiary of notice of any such acceleration) if the aggregate principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay principal at final stated maturity or which has been accelerated (in each case with respect to which the 30-day period described above has elapsed), aggregated $25.0 million or more at any time; provided that if such failure to pay shall be remedied, waived or extended within 30 days of receipt by the Company or such Restricted Subsidiary of notice of such acceleration, then any Default or Event of Default hereunder shall be deemed likewise to be remedied, waived or extended without further action by the Company; (5) one or more judgments in an aggregate amount in excess of $25.0 million shall have been rendered against the Company or any of is Restricted Subsidiaries and such judgments remain undischarged, unpaid or unstayed for a period of 60 days after such judgment or judgments become final and non-appealable; provided, however, that the rendering of any such judgment(s) shall not be an Event of Default under this clause (5) unless (i) the Company and its Restricted Subsidiaries which are subject to the order, as of the date of the issuance of such judgment(s), have at least $25.0 million in net assets located in such court's jurisdiction or (ii) a final and non-appealable order enforcing such judgment(s) is entered by a court of competent jurisdiction in a jurisdiction where the Company and its Restricted Subsidiaries subject to the order, as of the date of the entry of such order of enforcement, have at least $25.0 million in net assets located in such jurisdiction; (6) certain events of bankruptcy affecting the Company or any of its Significant Subsidiaries; or (7) any Guarantee of a Significant Subsidiary ceases to be in full force and effect or any Guarantee of a Significant Subsidiary is declared to be null and void and unenforceable or any Guarantee of a Significant Subsidiary is found to be invalid or any Guarantor that is a Significant Subsidiary denies its liability under its Guarantee (other than by reason of release of such Guarantor in accordance with the terms of the Indenture). If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately. Upon any such declaration, the entire principal amount of, and accrued and unpaid interest and Additional Interest, if any, on the Notes shall become immediately due and payable. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Notes will become due and payable without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to payment on any Note) if it determines that withholding notice is in their interest. The Holders of a majority in principal amount of the Notes may waive any existing or past Default or Event of Default under the Indenture, and its consequences, except a default in the payment of the principal of, or interest on any Notes. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default. A-10 14. Trustee Dealings with Company. Subject to certain limitations, the Trustee under the Indenture, in its individual or any other capacity, may become owner or pledge of Notes and may otherwise deal with the Company or its Affiliates as if it were not Trustee. 15. No Recourse Against Others. No past, present or future director, officer, employee, incorporator or stockholder of the Company, as such, shall have any liability for any obligations of the Company under the Notes or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes. 16. Authentication. This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent. 17. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). 18. Discharge Prior to Maturity. If the Company deposits with the Trustee or Paying Agent cash or U.S. Government Obligations sufficient to pay the principal or Redemption Price of, and interest and Additional Interest, if any, on, the Notes to maturity or a specified Redemption Date and satisfies certain conditions specified in the Indenture, the Company will be discharged from the Indenture, except for certain Sections thereof. 19. Governing Law. The Indenture and Guarantees and this Note shall be governed by and construed in accordance with the laws of the State of New York but without giving effect to applicable principles of conflicts of law to the extent that the application of the law of another jurisdiction would be required thereby. Each of the Company and each Guarantor hereby irrevocably submits to the jurisdiction of any New York state court sitting in the Borough of Manhattan in the City of New York or any Federal court sitting in the Borough of Manhattan in the City of New York in respect of any suit, action or proceeding arising out of or relating to the Indenture and the Notes, and irrevocably accept for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaid courts. Each of the Company and each Guarantor irrevocably waives, to the fullest extent that it may effectively do so under applicable law, trial by jury and any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Nothing herein shall affect the right of the Trustee or any Holder of the Notes to serve process in any other manner permitted by law or to commence legal proceedings or otherwise proceed against the Company or any Guarantor in any other jurisdiction. A-11 20. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the correctness or accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption or repurchase and reliance may be placed only on the other identification numbers placed thereon. 21. Registration Rights. Pursuant to the Registration Rights Agreement, the Company will be obligated upon the occurrence of certain events to consummate an exchange offer pursuant to which the Holder of this Note shall have the right to exchange this Series A Note for the Company's 8-7/8% Senior Notes due 2011, Series B, which have been registered under the Securities Act, in like principal amount and having terms identical in all material respects as the Series A Notes. The Holders shall be entitled to receive certain additional interest payments in the event such exchange offer is not consummated and upon certain other conditions, all pursuant to and in accordance with the terms of the Registration Rights Agreement. The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Request may be made to: Dole Food Company, Inc. One Dole Drive Westlake Village, CA 91362 Attention: General Counsel A-12 ASSIGNMENT FORM To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to ________________________________________________________________________________ (Insert assignee's soc. sec. or tax I.D. no.) ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ (Print or type assignee's name address and zip code) and irrevocably appoint_________________________________________________________ agent to transfer this Note on the books of the Company. The agent may substitute another to act for him. Date: _____________________ Your Signature: ________________________________ (Sign exactly as your name appears on the face of this Note) Signature Guarantee: _________________________________________________ (Participant in recognized signature guarantee medallion program) A-13 OPTION OF HOLDER TO ELECT PURCHASE If you wish to elect to have all or any portion of this Note purchased by the Company pursuant to Section 4.10 ("Net Proceeds Offer") or Section 4.15 ("Change of Control Offer") of the Indenture, check the applicable boxes [ ] Net Proceeds Offer: [ ] Change of Control Offer: in whole [ ] in whole [ ] in part [ ] in part [ ] Amount to be Amount to be purchased: $___________ purchased: $___________ Dated: __________________ Signature: ______________________________ (Sign exactly as your name appears on the other side of this Note) Signature Guarantee: __________________________________________________ (Participant in recognized signature guarantee medallion program) Social Security Number or Taxpayer Identification Number:_______________________________ A-14 EXHIBIT B FORM OF SERIES B NOTE (Face of Note) DOLE FOOD COMPANY, INC. 8-7/8% SENIOR NOTE DUE 2011 THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO ANYONE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. DOLE FOOD COMPANY, INC. 8-7/8% SENIOR NOTE DUE 2011 CUSIP No._________________ No._______________ $_________________________ Interest Payment Dates: March 15 and September 15 Record Dates: March 1 and September 1 DOLE FOOD COMPANY, INC., a Delaware corporation (the "Company," which term includes any successor corporation under the indenture hereinafter referred to ), for value received, promises to pay to ____________________________________________________ or registered assigns, the principal sum of _____________________ Dollars on March 15, 2011. Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as set forth at this place. Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefits under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Company has caused this Note to be duly executed under its corporate seal. [SEAL] Dated: DOLE FOOD COMPANY, INC. By: ____________________________________ Name: Title: By: ____________________________________ Name: Title: B-2 This is one of the Notes referred to in the within-mentioned Indenture: WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee By: ________________________________ Name: Title: B-3 (Back of Note) 8-7/8% Senior Notes due 2011 Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated. 1. Interest. The Company promises to pay interest on the principal amount of this Note at the rate of 8-7/8% per annum from the date of original issuance until maturity. The Company will pay interest and Additional Interest semi-annually on March 15 and September 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each an "Interest Payment Date"). Interest on the Note will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided, further, that the first Interest Payment Date with respect to a Note issued on the Issue Date shall be September 15, 2003. The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue payments of the principal, Purchase Price and Redemption Price of this Note from time to time on demand at a rate that is 1% per annum in excess of the rate then in effect; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest and Additional Interest, if any, (without regard to any applicable grace periods) hereon from time to time on demand at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months. 2. Method of Payment. The Company will pay interest on the Notes (except defaulted interest) and Additional Interest, if any, to the Persons who are registered Holders of Notes at the close of business on March 1 and September 1 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. Any such installment of interest or Additional Interest, if any, not punctually paid or duly provided for shall forthwith cease to be payable to the registered Holders on such Interest Payment Date, and may be paid to the registered Holders at the close of business on a special interest payment date to be fixed by the Trustee for the payment of such defaulted interest, notice whereof shall be given to the registered Holders not less than 10 days prior to such special interest payment date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. The Notes will be payable as to principal, Redemption Price, Purchase Price, interest and Additional Interest, if any, by wire transfer of immediately available funds. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. B-5 3. Paying Agent and Registrar. Initially, Wells Fargo Bank, National Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company may act in any such capacity. 4. Indenture and Guarantees. The Company issued $375 million in aggregate principal amount of the Notes under an Indenture dated as of March 28, 2003 (the "Indenture") between the Company, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.C. Code Sections 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. The Notes are general obligations of the Company. Payment on each Note is guaranteed on a senior subordinated basis, jointly and severally, by the Guarantors pursuant to Article XI of the Indenture. The Guarantee of any Guarantor is subordinated in right of payment, in the manner and to the extent set forth in the Indenture, to the prior payment in full in cash or Cash Equivalents of all Guarantor Senior Debt of such Guarantor, whether outstanding on the date of the Indenture or thereafter created, incurred, assumed or guaranteed. Each Holder by his acceptance hereof agrees to be bound by such provisions and authorizes and expressly directs the Trustee, on his behalf, to take such action as may be necessary or appropriate to effectuate the subordination provided for in the Indenture and appoints the Trustee his attorney-in-fact for such purposes. 5. Optional Redemption. The Company may redeem any or all of the Notes at any time on or after March 15, 2007, upon not less than 30 nor more than 60 days' prior notice in amounts of $1,000 or an integral multiple thereof at the Redemption Prices (expressed as a percentage of the principal amount) set forth below, if redeemed during the 12-month period beginning January 1 of the years indicated below:

Redemption Year Price - ---- ---------- 2007............................................... 104.438% 2008............................................... 102.219% 2009 and thereafter................................ 100.000%

in each case together with accrued and unpaid interest and Additional Interest, if any, to the Redemption Date. If less than all the Notes are to be redeemed, the Trustee will select the particular Notes or portions thereof to be redeemed by lot, pro rata or by any other method the Trustee shall deem fair and reasonable. B-6 6. Optional Redemption Upon Equity Offerings. In the event the Company completes one or more Equity Offerings on or before January 1, 2005, the Company, at its option, may use the net cash proceeds from any such Equity Offering to redeem up to 35% of the original principal amount of the Notes (a "Special Redemption") at a Redemption Price of 108.875% of the principal amount, together with accrued and unpaid interest and Additional Interest (if any), to the date of redemption, provided, however, that at least 65% of the original principal amount of the Notes initially issued under the Indenture will remain outstanding immediately after each such redemption; and provided, further, that each such redemption shall occur within 90 days after the date of the closing of the applicable Equity Offering. If less than all the Notes are to be redeemed, the Trustee will select the particular Notes or portions thereof to be redeemed by lot, only on a pro rata basis or on as nearly a pro rata basis as is practicable (subject to DTC procedures). 7. Mandatory Redemption. Except as set forth in Paragraph 9 below with respect to repurchases of Notes in certain events, the Company shall not be required to make mandatory redemption payments with respect to the Notes. 8. Notice of Redemption. Subject to the provisions of the Indenture, a notice of redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder whose Notes are to be redeemed at its registered address. Notes in denominations larger than $1,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date interest ceases to accrue on Notes or portions thereof called for redemption. 9. Repurchase at Option of Holder. (a) If there is a Change of Control, the Company shall be required to make an offer (a "Change of Control Offer") to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of each Holder's Notes at a Purchase Price equal to 101% of the principal amount thereof plus accrued and unpaid interest and Additional Interest, if any, to the date of repurchase, in accordance with the procedures set forth in the Indenture. Subject to the terms and conditions set forth in the Indenture, within 30 days following any Change of Control, the Company shall mail a notice to each Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture. (b) Pending the final application of such Net Cash Proceeds, the Company may temporarily reduce borrowings under the Credit Agreement or any other revolving credit facility, if any. On the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (3)(a), (3)(b) and (3)(c) of paragraph (A) of Section 4.10 of the Indenture, or, in the event that a definitive agreement has been entered into prior to such 366th day pursuant to which the Net Cash Proceeds are to be applied on the later of the 366th day and the 121st day after the execution of such agreement B-7 (each, a "Net Proceeds Offer Trigger Date"), such aggregate amount of Net Cash Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(a), (3)(b) and (3)(c) of paragraph (A) of Section 4.10 of the Indenture (each, a "Net Proceeds Offer Amount") shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the "Net Proceeds Offer") to all Holders and, to the extent required by the terms of any Pari Passu Debt, an offer to purchase to all holders of such Pari Passu Debt, on a date (the "Net Proceeds Offer Payment Date") not less the 30 nor more then 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of any such Pari Passu Debt) on a pro rata basis, that amount of Notes (and Pari Passu Debt) equal to the Net Proceeds Offer Amount at a price equal to 100% of the principal amount of the Notes (and Pari Passu Debt) to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder as of the date of such conversion or disposition and the Net Cash Proceeds thereof shall be applied in accordance with this covenant. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in the Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Debt properly tender such Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Debt will be purchased on a pro rata basis based on aggregate amounts of Notes and Pari Passu Debt tendered (and the Trustee shall select the tendered Notes of tendering Holders on a pro rata basis based on the amount of Notes tendered). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. If any Net Cash Proceeds remain after the consummation of any Net Proceeds Offer, the Company may use those Net Cash Proceeds for any purpose not otherwise prohibited by the Indenture. Upon completion of each Net Proceeds Offer, the Net Proceeds Offer Amount will be reset at zero. 10. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in denominations of $1,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, it need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be re- B-8 deemed or during the period between a record date and the corresponding Interest Payment Date. 11. Persons Deemed Owners. The registered Holder of a Note may be treated as its owner for all purposes. 12. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture and the Notes may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the then outstanding Notes, and any existing default or compliance with any provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes. Without the consent of any Holder of a Note, the Indenture and the Notes may be amended or supplemented to cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes in addition to or in place of certificated Notes, to provide for the assumption of the Company's obligations to Holders of the Notes in case of a merger or consolidation, to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the legal rights under the Indenture of any such Holder in any material respect, or to comply with the requirements of the Commission in order to effect or maintain the qualification of the Indenture under the Trust Indenture Act. 13. Defaults and Remedies. Events of Default include: (1) the failure to pay interest on any Notes when the same becomes due and payable and the default continues for a period of 30 days (whether or not such payment shall be prohibited by the subordination provisions of the Indenture); (2) the failure to pay the principal of any Notes when such principal becomes due and payable, at maturity, upon redemption or otherwise (including the failure to make a payment to purchase Notes tendered pursuant to a Change of Control Offer or a Net Proceeds Offer) (whether or not such payment shall be prohibited by the subordination provisions of the Indenture); (3) a default in the observance or performance of any other covenant or agreement contained in the Indenture which default continues for a period of 45 days after the Company receives written notice specifying the default (and demanding that such default be remedied) from the Trustee or the Holders of at least 25% of the outstanding principal amount of the Notes (except in the case of a default with respect to Section 5.1 of the Indenture, which will constitute an Event of Default with such notice requirement but without such passage of time requirement); (4) the failure to pay at final maturity (giving effect to any applicable grace periods and any extensions thereof) the stated principal amount of any Indebtedness of the Company or any Restricted Subsidiary of the Company, or the acceleration of the final stated maturity of any such Indebtedness (which acceleration is not rescinded, annulled or otherwise cured within 30 days of receipt by the Company or such Restricted subsidiary of notice of any such acceleration) if the aggregate principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay principal at final stated maturity or which has been accelerated (in each case with respect to which the 30-day period described above has elapsed), aggregated $25.0 million or more at any time; provided that if such failure to pay shall be remedied, waived or B-9 extended within 30 days of receipt by the Company or such Restricted Subsidiary of notice of such acceleration, then any Default or Event of Default hereunder shall be deemed likewise to be remedied, waived or extended without further action by the Company; (5) one or more judgments in an aggregate amount in excess of $25.0 million shall have been rendered against the Company or any of is Restricted Subsidiaries and such judgments remain undischarged, unpaid or unstayed for a period of 60 days after such judgment or judgments become final and non-appealable; provided, however, that the rendering of any such judgment(s) shall not be an Event of Default under this clause (5) unless (i) the Company and its Restricted Subsidiaries which are subject to the order, as of the date of the issuance of such judgment(s), have at least $25.0 million in net assets located in such court's jurisdiction or (ii) a final and non-appealable order enforcing such judgment(s) is entered by a court of competent jurisdiction in a jurisdiction where the Company and its Restricted Subsidiaries subject to the order, as of the date of the entry of such order of enforcement, have at least $25.0 million in net assets located in such jurisdiction; (6) certain events of bankruptcy affecting the Company or any of its Significant Subsidiaries; or (7) any Guarantee of a Significant Subsidiary ceases to be in full force and effect or any Guarantee of a Significant Subsidiary is declared to be null and void and unenforceable or any Guarantee of a Significant Subsidiary is found to be invalid or any Guarantor that is a Significant Subsidiary denies its liability under its Guarantee (other than by reason of release of such Guarantor in accordance with the terms of the Indenture). If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately. Upon any such declaration, the entire principal amount of, and accrued and unpaid interest and Additional Interest, if any, on the Notes shall become immediately due and payable. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Notes will become due and payable without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to payment on any Note) if it determines that withholding notice is in their interest. The Holders of a majority in principal amount of the Notes may waive any existing or past Default or Event of Default under the Indenture, and its consequences, except a default in the payment of the principal of, or interest on any Notes. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default. 14. Trustee Dealings with Company. Subject to certain limitations, the Trustee under the Indenture, in its individual or any other capacity, may become owner or pledge of Notes and may otherwise deal with the Company or its Affiliates as if it were not Trustee. B-10 15. No Recourse Against Others. No past, present or future director, officer, employee, incorporator or stockholder of the Company, as such, shall have any liability for any obligations of the Company under the Notes or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes. 16. Authentication. This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent. 17. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). 18. Discharge Prior to Maturity. If the Company deposits with the Trustee or Paying Agent cash or U.S. Government Obligations sufficient to pay the principal or Redemption Price of, and interest and Additional Interest, if any, on, the Notes to maturity or a specified Redemption Date and satisfies certain conditions specified in the Indenture, the Company will be discharged from the Indenture, except for certain Sections thereof. 19. Governing Law. The Indenture and Guarantees and this Note shall be governed by and construed in accordance with the laws of the State of New York but without giving effect to applicable principles of conflicts of law to the extent that the application of the law of another jurisdiction would be required thereby. Each of the Company and each Guarantor hereby irrevocably submits to the jurisdiction of any New York state court sitting in the Borough of Manhattan in the City of New York or any Federal court sitting in the Borough of Manhattan in the City of New York in respect of any suit, action or proceeding arising out of or relating to the Indenture and the Notes, and irrevocably accept for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaid courts. Each of the Company and each Guarantor irrevocably waives, to the fullest extent that it may effectively do so under applicable law, trial by jury and any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Nothing herein shall affect the right of the Trustee or any Holder of the Notes to serve process in any other manner permitted by law or to commence legal proceedings or otherwise proceed against the Company or any Guarantor in any other jurisdiction. 20. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the correctness or ac- B-11 curacy of such numbers either as printed on the Notes or as contained in any notice of redemption or repurchase and reliance may be placed only on the other identification numbers placed thereon. The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Request may be made to: Dole Food Company, Inc. One Dole Drive Westlake Village, CA 91362 Attention: General Counsel B-12 EXHIBIT C GUARANTEE For value received, the undersigned hereby unconditionally guarantees, as principal obligor and not only as a surety, to the Holder of this Note the cash payments in United States dollars of principal of, premium, if any, and interest on this Note (and including Additional Interest payable thereon) in the amounts and at the times when due and interest on the overdue principal, premium, if any, and interest, if any, of this Note, if lawful, and the payment or performance of all other Obligations of the Company under the Indenture (as defined below) or the Note, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note, Article XI of the Indenture, the subordination provisions of Article X of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Article XI of the Indenture and its terms shall be evidenced therein. The validity and enforceability of this Guarantee shall not be affected by the fact that it is not affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of March 28, 2003, among Dole Food Company, Inc., a Delaware corporation, as issuer (the "Company"), each of the Guarantors named therein and Wells Fargo Bank, National Association, as trustee (the "Trustee") (as amended or supplemented, the "Indenture"). THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. Each Guarantor hereby agrees to submit to the jurisdiction of the courts of the State of New York in any action or proceeding arising out of or relating to this Guarantee. This Guarantee is subject to release upon the terms set forth in the Indenture. [GUARANTOR] By: ____________________________ Name: Title: EX-4.11 7 a89799exv4w11.txt EXHIBIT 4.11 EXHIBIT 4.11 - -------------------------------------------------------------------------------- REGISTRATION RIGHTS AGREEMENT Dated as of March 28, 2003 Among DOLE FOOD COMPANY, INC. and THE GUARANTORS NAMED HEREIN as Issuers, and DEUTSCHE BANK SECURITIES INC., BANC OF AMERICA SECURITIES LLC, SCOTIA CAPITAL (USA) INC., FLEET SECURITIES, INC., SG COWEN SECURITIES CORPORATION, and BMO NESBITT BURNS CORP., as Initial Purchasers 8-7/8% Senior Notes due 2011 - -------------------------------------------------------------------------------- TABLE OF CONTENTS

Page ---- 1. Definitions.......................................................................................... 1 2. Exchange Offer....................................................................................... 5 3. Shelf Registration................................................................................... 9 4. Additional Interest.................................................................................. 11 5. Registration Procedures.............................................................................. 13 6. Registration Expenses................................................................................ 22 7. Indemnification and Contribution..................................................................... 23 8. Rules 144 and 144A................................................................................... 27 9. Underwritten Registrations........................................................................... 27 10. Miscellaneous........................................................................................ 28

-i- REGISTRATION RIGHTS AGREEMENT This Registration Rights Agreement (this "Agreement") is dated as of March 28, 2003, among DOLE FOOD COMPANY, INC., a Delaware corporation (the "Company"), the subsidiaries of the Company listed on Schedule 1 hereto (collectively, and together with any entity that in the future executes a supplemental indenture pursuant to which such entity agrees to guarantee the Notes (as hereinafter defined), the "Guarantors," and together with the Company, the "Issuers") and DEUTSCHE BANK SECURITIES INC., BANC OF AMERICA SECURITIES LLC, SCOTIA CAPITAL (USA) INC., FLEET SECURITIES, INC., SG COWEN SECURITIES CORPORATION and BMO NESBITT BURNS CORP. as initial purchasers (the "Initial Purchasers"). This Agreement is entered into in connection with the Purchase Agreement by and among the Issuers and the Initial Purchasers, dated as of March 28, 2003 (the "Purchase Agreement"), which provides for, among other things, the sale by the Company to the Initial Purchasers of $475,000,000 aggregate principal amount of the Company's 8-7/8% Senior Notes due 2011 (the "Notes") guaranteed on an unsecured senior subordinated basis by the Guarantors (the "Guarantees"). In order to induce the Initial Purchasers to enter into the Purchase Agreement, the Issuers have agreed to provide the registration rights set forth in this Agreement for the benefit of the Initial Purchasers and any subsequent holder or holders of the Notes. The execution and delivery of this Agreement is a condition to the Initial Purchasers' obligation to purchase the Notes under the Purchase Agreement. The parties hereby agree as follows: 1. Definitions As used in this Agreement, the following terms shall have the following meanings: Additional Interest: See Section 4(a) hereof. Advice: See the last paragraph of Section 5 hereof. Agreement: See the introductory paragraphs hereto. Applicable Period: See Section 2(b) hereof. Business Day: Any day that is not a Saturday, Sunday or a day on which banking institutions in New York are authorized or required by law to be closed. Company: See the introductory paragraphs hereto. -2- Effectiveness Date: With respect to (i) the Exchange Offer Registration Statement, the 180th day after the Issue Date and (ii) any Shelf Registration Statement, the 90th day after the Filing Date with respect thereto; provided, however, that if the Effectiveness Date would otherwise fall on a day that is not a Business Day, then the Effectiveness Date shall be the next succeeding Business Day. Effectiveness Period: See Section 3(a) hereof. Event Date: See Section 4(b) hereof. Exchange Act: The Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder. Exchange Notes: See Section 2(a) hereof. Exchange Offer: See Section 2(a) hereof. Exchange Offer Registration Statement: See Section 2(a) hereof. Filing Date: (A) If no Registration Statement has been filed by the Company pursuant to this Agreement, the 90th day after the Issue Date; and (B) in any other case (which may be applicable notwithstanding the consummation of the Exchange Offer), the 90th day after the delivery of a Shelf Notice as required pursuant to Section 2(c) hereof; provided, however, that if the Filing Date would otherwise fall on a day that is not a Business Day, then the Filing Date shall be the next succeeding Business Day. Guarantees: See the introductory paragraphs hereto. Guarantors: See the introductory paragraphs hereto. Holder: Any holder of a Registrable Note or Registrable Notes. Indenture: The Indenture, dated as of March 28, 2003, by and among the Company, the Guarantors, and Wells Fargo Bank, National Association, as Trustee, pursuant to which the Notes are being issued, as amended or supplemented from time to time in accordance with the terms thereof. Information: See Section 5(o) hereof. Initial Purchasers: See the introductory paragraphs hereto. Initial Shelf Registration: See Section 3(a) hereof. -3- Inspectors: See Section 5(o) hereof. Issue Date: March 28, 2003, the date of original issuance of the Notes. Issuers: See the introductory paragraphs hereto. NASD: See Section 5(s) hereof. Notes: See the introductory paragraphs hereto. Participant: See Section 7(a) hereof. Participating Broker-Dealer: See Section 2(b) hereof. Person: An individual, trustee, corporation, partnership, limited liability company, joint stock company, trust, unincorporated association, union, business association, firm or other legal entity. Private Exchange: See Section 2(b) hereof. Private Exchange Notes: See Section 2(b) hereof. Prospectus: The prospectus included in any Registration Statement (including, without limitation, any prospectus subject to completion and a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A under the Securities Act and any term sheet filed pursuant to Rule 434 under the Securities Act), as amended or supplemented by any prospectus supplement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus. Purchase Agreement: See the introductory paragraphs hereof. Records: See Section 5(o) hereof. Registrable Notes: Each Note (and the related Guarantees) upon its original issuance and at all times subsequent thereto, each Exchange Note (and the related Guarantees) as to which Section 2(c)(iv) hereof is applicable upon original issuance and at all times subsequent thereto and each Private Exchange Note (and the related Guarantees) upon original issuance thereof and at all times subsequent thereto, until, in each case, the earliest to occur of (i) a Registration Statement (other than, with respect to any Exchange Note as to which Section 2(c)(iv) hereof is applicable, the Exchange Offer Registration Statement) covering such Note, Exchange Note or Private Exchange Note has been declared effective by the SEC and -4- such Note, Exchange Note or such Private Exchange Note (and the related Guarantees), as the case may be, has been disposed of in accordance with such effective Registration Statement, (ii) such Note has been exchanged pursuant to the Exchange Offer for an Exchange Note or Exchange Notes (and the related Guarantees) that may be resold without restriction under state and federal securities laws, (iii) such Note, Exchange Note or Private Exchange Note (and the related Guarantees), as the case may be, ceases to be outstanding for purposes of the Indenture or (iv) such Note, Exchange Note or Private Exchange Note (and the related Guarantees), as the case may be, may be resold without restriction pursuant to Rule 144(k) (as amended or replaced) under the Securities Act. Registration Statement: Any registration statement of the Company that covers any of the Notes, the Exchange Notes or the Private Exchange Notes (and the related Guarantees) filed with the SEC under the Securities Act, including the Prospectus, amendments and supplements to such registration statement, including post-effective amendments, all exhibits, and all material incorporated by reference or deemed to be incorporated by reference in such registration statement. Rule 144: Rule 144 under the Securities Act. Rule 144A: Rule 144A under the Securities Act. Rule 405: Rule 405 under the Securities Act. Rule 415: Rule 415 under the Securities Act. Rule 424: Rule 424 under the Securities Act. SEC: The U.S. Securities and Exchange Commission. Securities Act: The Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder. Shelf Notice: See Section 2(c) hereof. Shelf Registration: See Section 3(b) hereof. Shelf Registration Statement: Any Registration Statement relating to a Shelf Registration. Shelf Suspension Period: See Section 3(a) hereof. Subsequent Shelf Registration: See Section 3(b) hereof. -5- TIA: The Trust Indenture Act of 1939, as amended. Trustee: The trustee under the Indenture and the trustee (if any) under any indenture governing the Exchange Notes and Private Exchange Notes (and the related Guarantees). Underwritten registration or underwritten offering: A registration in which securities of the Company are sold to an underwriter for reoffering to the public. Except as otherwise specifically provided, all references in this Agreement to acts, laws, statutes, rules, regulations, releases, forms, no-action letters and other regulatory requirements (collectively, "Regulatory Requirements") shall be deemed to refer also to any amendments thereto and all subsequent Regulatory Requirements adopted as a replacement thereto having substantially the same effect therewith; provided that Rule 144 shall not be deemed to amend or replace Rule 144A. 2. Exchange Offer (a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Issuers shall use their respective reasonable best efforts to file with the SEC, no later than the Filing Date, a Registration Statement (the "Exchange Offer Registration Statement") on an appropriate registration form with respect to a registered offer (the "Exchange Offer") to exchange any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company (the "Exchange Notes"), guaranteed on an unsecured senior subordinated basis by the Guarantors, that are identical in all material respects to the Notes, except that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii) interest thereon shall accrue from the last date on which interest was paid on the Notes or, if no such interest has been paid, from the Issue Date, and which are entitled to the benefits of the Indenture or a trust indenture which is identical in all material respects to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with the TIA) and which, in either case, has been qualified under the TIA. The Exchange Offer shall comply in all material respects with all applicable tender offer rules and regulations under the Exchange Act and other applicable laws. The Issuers shall (x) use their respective reasonable best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 210th day following the Issue Date; provided, however, that if such 210th day would otherwise fall on a day that is not a Business Day, then such Exchange Offer must be consummated not later than the next succeeding Business Day. -6- Each Holder (including, without limitation, each Participating Broker-Dealer) who participates in the Exchange Offer will be required to represent to the Issuers in writing (which may be contained in the applicable letter of transmittal) that: (i) any Exchange Notes acquired in exchange for Registrable Notes tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Notes, whether or not such recipient is such Holder itself; (ii) at the time of the commencement or consummation of the Exchange Offer neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder has an arrangement or understanding with any Person to participate in the "distribution" (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; (iii) neither the Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is an "affiliate" (as defined in Rule 405) of the Company or, if it is an affiliate of the Company, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and will provide information to be included in the Shelf Registration Statement in accordance with Section 5 hereof in order to have their Notes included in the Shelf Registration Statement and benefit from the provisions regarding Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the actual knowledge of such Holder, any other Person receiving Exchange Notes from such Holder is engaging in or intends to engage in a distribution of the Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such Holder has acquired the Registrable Notes as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the Securities Act (including, but not limited to, the prospectus delivery requirements thereunder) in connection with any resale of the Exchange Notes. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes held by Participating Broker-Dealers, and the Company shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No securities other than the Exchange Notes shall be included in the Exchange Offer Registration Statement. (b) The Issuers shall include within the Prospectus contained in the Exchange Offer Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a -7- "Participating Broker-Dealer"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies represent the prevailing views of the staff of the SEC. Such "Plan of Distribution" section shall also expressly permit, to the extent permitted by applicable policies and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including, to the extent permitted by applicable policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes in compliance with the Securities Act. The Issuers shall use their respective reasonable best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as is necessary to comply with applicable law in connection with any resale of the Exchange Notes; provided, however, that such period shall not be required to exceed 90 days or such longer period if extended pursuant to the last paragraph of Section 5 hereof (the "Applicable Period"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them that have the status of an unsold allotment in the initial distribution, the Issuers, upon the request of the Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes issue and deliver to the Initial Purchasers, in exchange (the "Private Exchange") for such Notes held by any such Holder, a like principal amount of notes (the "Private Exchange Notes") of the Company, guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes except for the placement of a restrictive legend on such Private Exchange Notes. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted by the CUSIP Service Bureau. In connection with the Exchange Offer, the Issuers shall: (1) mail, or cause to be mailed, to each Holder of record entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents; (2) use their respective reasonable best efforts to keep the Exchange Offer open for not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders (or longer if required by applicable law); (3) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York; -8- (4) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer remains open; and (5) otherwise comply in all material respects with all applicable laws, rules and regulations. As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall: (1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer and the Private Exchange, if any; (2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and (3) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange; provided that, in the case of any Notes held in global form by a depositary, authentication and delivery to such depositary of one or more replacement Notes in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable law or any applicable interpretation of the staff of the SEC; (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private Exchange, and no material adverse development shall have occurred in any existing action or proceeding with respect to the Issuers; and (iii) all governmental approvals shall have been obtained, which approvals the Issuers deem necessary for the consummation of the Exchange Offer or Private Exchange. The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture, with such changes as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA, and which, in either case, has been qualified under the TIA or is exempt from such qualification and shall provide that the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange -9- Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter. (c) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the SEC, the Issuers are not permitted to effect the Exchange Offer, (ii) the Exchange Offer is not consummated within 210 days of the Issue Date; provided, however, that if such 210th day would otherwise fall on a day that is not a Business Day, then such Exchange Offer must be consummated not later than the next succeeding Business Day, (iii) the Initial Purchasers or any other holder of Private Exchange Notes so requests in writing to the Company at any time after the consummation of the Exchange Offer, or (iv) in the case of any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and so notifies the Company within 60 days after the consummation of the Exchange Offer, in the case of each of clauses (i) to and including (iv) of this sentence, then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the "Shelf Notice") and shall file a Shelf Registration pursuant to Section 3 hereof. 3. Shelf Registration If at any time a Shelf Notice is delivered as contemplated by Section 2(c) hereof, then: (a) Shelf Registration. The Issuers shall as promptly as practicable file with the SEC a Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 covering all of the Registrable Notes (the "Initial Shelf Registration"). The Issuers shall use their respective reasonable best efforts to file with the SEC the Initial Shelf Registration on or prior to the applicable Filing Date. The Initial Shelf Registration shall be on Form S-1 or another appropriate form (as reasonably determined by the Issuers) permitting registration of such Registrable Notes for resale by Holders in the manner or manners designated by them (including, without limitation, one or more underwritten offerings). The Issuers shall not permit any securities other than the Registrable Notes to be included in the Initial Shelf Registration or any Subsequent Shelf Registration (as defined below). The Issuers shall use their respective reasonable best efforts to cause the Shelf Registration to be declared effective under the Securities Act on or prior to the Effectiveness Date and to keep the Initial Shelf Registration continuously effective under the Securities Act until the date that is two years from the Issue Date or such shorter period ending when all Registrable Notes covered by the Initial Shelf Registration have been sold in the manner set forth and as contemplated in the Initial Shelf Regis- -10- tration or, if applicable, a Subsequent Shelf Registration (the "Effectiveness Period"); provided, however, that the Effectiveness Period in respect of the Initial Shelf Registration shall be extended to the extent required to permit dealers to comply with the applicable prospectus delivery requirements of Rule 174 under the Securities Act and as otherwise provided herein and shall be subject to reduction to the extent that the applicable provisions of Rule 144(k) are amended or revised to reduce the two year holding period set forth therein. Notwithstanding anything to the contrary in this Agreement, at any time, the Company may delay the filing of any Initial Shelf Registration Statement or delay or suspend the effectiveness thereof, for a reasonable period of time, but not in excess of an aggregate of 60 days in any calendar year (a "Shelf Suspension Period"), if the Board of Directors of the Company determines reasonably and in good faith that the filing of any such Initial Shelf Registration Statement or the continuing effectiveness thereof would require the disclosure of non-public material information that, in the reasonable judgment of the Board of Directors of the Company, would be detrimental to the Company if so disclosed or would otherwise materially adversely affect a financing, acquisition, disposition, merger or other material transaction. (b) Withdrawal of Stop Orders; Subsequent Shelf Registrations. If the Initial Shelf Registration or any Subsequent Shelf Registration ceases to be effective for any reason at any time during the Effectiveness Period (other than because of the sale of all of the Notes registered thereunder), the Issuers shall use their respective reasonable best efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within 30 days of such cessation of effectiveness amend such Shelf Registration Statement in a manner to obtain the withdrawal of the order suspending the effectiveness thereof, or file an additional Shelf Registration Statement pursuant to Rule 415 covering all of the Registrable Notes covered by and not sold under the Initial Shelf Registration or an earlier Subsequent Shelf Registration (each, a "Subsequent Shelf Registration"). If a Subsequent Shelf Registration is filed, the Issuers shall use their respective reasonable best efforts to cause the Subsequent Shelf Registration to be declared effective under the Securities Act as soon as practicable after such filing and to keep such subsequent Shelf Registration continuously effective for a period equal to the number of days in the Effectiveness Period less the aggregate number of days during which the Initial Shelf Registration or any Subsequent Shelf Registration was previously continuously effective. As used herein the term "Shelf Registration" means the Initial Shelf Registration and any Subsequent Shelf Registration. (c) Supplements and Amendments. The Issuers shall promptly supplement and amend the Shelf Registration if required by the rules, regulations or instructions applicable to the registration form used for such Shelf Registration, if required by the -11- Securities Act, or if reasonably requested by the Holders of a majority in aggregate principal amount of the Registrable Notes (or their counsel) covered by such Registration Statement with respect to the information included therein with respect to one or more of such Holders, or by any underwriter of such Registrable Notes with respect to the information included therein with respect to such underwriter. 4. Additional Interest (a) The Issuers and the Initial Purchasers agree that the Holders will suffer damages if the Issuers fail to fulfill their obligations under Section 2 or Section 3 hereof and that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, the Issuers agree to pay, jointly and severally, as liquidated damages, additional interest on the Notes ("Additional Interest") under the circumstances and to the extent set forth below (each of which shall be given independent effect): (i) if (A) neither the Exchange Offer Registration Statement nor the Initial Shelf Registration has been filed on or prior to the Filing Date applicable thereto or (B) notwithstanding that the Issuers have consummated or will consummate the Exchange Offer, the Issuers are required to file a Shelf Registration and such Shelf Registration is not filed on or prior to the Filing Date applicable thereto, then, commencing on the day after any such Filing Date, Additional Interest shall accrue on the principal amount of the Notes at a rate of 0.50% per annum for the first 90 days immediately following such applicable Filing Date, and such Additional Interest rate shall increase by an additional 0.50% per annum at the beginning of the immediately following 90-day period; or (ii) if (A) neither the Exchange Offer Registration Statement nor the Initial Shelf Registration is declared effective by the SEC on or prior to the Effectiveness Date applicable thereto or (B) notwithstanding that the Issuers have consummated or will consummate the Exchange Offer, the Issuers are required to file a Shelf Registration and such Shelf Registration is not declared effective by the SEC on or prior to the Effectiveness Date applicable to such Shelf Registration, then, commencing on the day after such Effectiveness Date, Additional Interest shall accrue on the principal amount of the Notes at a rate of 0.50% per annum for the first 90 days immediately following the day after such Effectiveness Date, and such Additional Interest rate shall increase by an additional 0.50% per annum at the beginning of the immediately following 90-day period; or (iii) if (A) the Issuers have not exchanged Exchange Notes for all Notes validly tendered in accordance with the terms of the Exchange Offer on or prior to the 210th day after the Issue Date; provided, however, that if such 210th day would otherwise fall on a day that is not a Business Day, then such Exchange Offer must be con- -12- summated not later than the next succeeding Business Day' or (B) if applicable, a Shelf Registration has been declared effective and such Shelf Registration ceases to be effective at any time during the Effectiveness Period, then Additional Interest shall accrue on the principal amount of the Notes at a rate of 0.50% per annum for the first 90 days commencing on the (x) 211th day after the Issue Date, in the case of (A) above, or (y) the day such Shelf Registration ceases to be effective in the case of (B) above, and such Additional Interest rate shall increase by an additional 0.50% per annum at the beginning of the immediately following 90-day period; provided, however, that the Additional Interest rate on the Notes may not accrue under more than one of the foregoing clauses (i) - (iii) at any one time and at no time shall the aggregate amount of Additional Interest accruing exceed in the aggregate 1.0% per annum; provided, further, however, that (1) upon the filing of the applicable Exchange Offer Registration Statement or the applicable Shelf Registration as required hereunder (in the case of clause (i) above of this Section 4), (2) upon the effectiveness of the Exchange Offer Registration Statement or the applicable Shelf Registration Statement as required hereunder (in the case of clause (ii) of this Section 4), or (3) upon the exchange of the Exchange Notes for all Notes tendered (in the case of clause (iii)(A) of this Section 4), or upon the effectiveness of the applicable Shelf Registration Statement which had ceased to remain effective (in the case of (iii)(B) of this Section 4), Additional Interest on the Notes in respect of which such events relate as a result of such clause (or the relevant subclause thereof), as the case may be, shall cease to accrue. Notwithstanding any other provision of this Section 4, the Issuer shall not be obligated to pay Additional Interest provided in Sections 4(a)(i)(B), 4(a)(ii)(B) or 4(a)(iii)(B) during a Shelf Suspension Period permitted by Section 3(a) hereof. (b) The Issuers shall notify the Trustee within one Business Day after each and every date on which an event occurs in respect of which Additional Interest is required to be paid (an "Event Date"). Any amounts of Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be payable in cash semiannually on each March 15 and September 15 (to the holders of record on the March 1 and September 1 immediately preceding such dates), commencing with the first such date occurring after any such Additional Interest commences to accrue. The amount of Additional Interest will be determined by multiplying the applicable Additional Interest rate by the principal amount of the Registrable Notes, multiplied by a fraction, the numerator of which is the number of days such Additional Interest rate was applicable during such period (determined on the basis of a 360 day year comprised of twelve 30 day months and, in the case of a partial month, the actual number of days elapsed), and the denominator of which is 360. -13- 5. Registration Procedures In connection with the filing of any Registration Statement pursuant to Section 2 or 3 hereof, the Issuers shall effect such registrations to permit the sale of the securities covered thereby in accordance with the intended method or methods of disposition thereof, and pursuant thereto and in connection with any Registration Statement filed by the Company hereunder each of the Issuers shall: (a) Prepare and file with the SEC prior to the applicable Filing Date a Registration Statement or Registration Statements as prescribed by Section 2 or 3 hereof, and use their respective reasonable best efforts to cause each such Registration Statement to become effective and remain effective as provided herein; provided, however, that if (1) such filing is pursuant to Section 3 hereof or (2) a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period relating thereto from whom the Company has received prior written notice that it will be a Participating Broker-Dealer in the Exchange Offer, before filing any Registration Statement or Prospectus or any amendments or supplements thereto, the Issuers shall furnish to and afford the Holders of the Registrable Notes covered by such Registration Statement (with respect to a Registration Statement filed pursuant to Section 3 hereof) or each such Participating Broker-Dealer (with respect to any such Registration Statement), as the case may be, their counsel and the managing underwriters, if any, a reasonable opportunity to review copies of all such documents (including copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed (in each case at least five business days prior to such filing). The Issuers shall not file any Registration Statement or Prospectus or any amendments or supplements thereto if the Holders of a majority in aggregate principal amount of the Registrable Notes covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object on a timely basis. (b) Prepare and file with the SEC such amendments and post-effective amendments to each Shelf Registration Statement or Exchange Offer Registration Statement, as the case may be, as may be necessary to keep such Registration Statement continuously effective for the Effectiveness Period, the Applicable Period or until consummation of the Exchange Offer, as the case may be; cause the related Prospectus to be supplemented by any Prospectus supplement required by applicable law, and as so supplemented to be filed pursuant to Rule 424; and comply in all material respects with the provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or in such Prospectus as so supplemented and with respect to the sub- -14- sequent resale of any securities being sold by an Participating Broker-Dealer covered by any such Prospectus. The Company shall be deemed not to have used its reasonable best efforts to keep a Registration Statement effective if the Company voluntarily takes any action that would result in selling Holders of the Registrable Notes covered thereby or Participating Broker-Dealers seeking to sell Exchange Notes not being able to sell such Registrable Notes or such Exchange Notes during that period unless such action is required by applicable law or permitted by this Agreement. (c) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period relating thereto from whom the Company has received written notice that it will be a Participating Broker-Dealer in the Exchange Offer, notify the selling Holders of Registrable Notes (with respect to a Registration Statement filed pursuant to Section 3 hereof), or each such Participating Broker-Dealer (with respect to any such Registration Statement), as the case may be, their counsel and the managing underwriters, if any, as promptly as possible, and, if requested by any such Person, confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective under the Securities Act (including in such notice a written statement that any Holder may, upon request, obtain, at the sole expense of the Company, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules, documents incorporated or deemed to be incorporated by reference and exhibits), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Notes or resales of Exchange Notes by Participating Broker-Dealers the representations and warranties of the Issuers contained in any agreement (including any underwriting agreement) contemplated by Section 5(n) hereof cease to be true and correct in all material respects, (iv) of the receipt by any Issuer of any notification with respect to the suspension of the qualification or exemption from qualification of a Registration Statement or any of the Registrable Notes or the Exchange Notes to be sold by any Participating Broker-Dealer for offer or sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, (v) of the happening of any event, the existence of any condition or any information becoming known that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in or -15- amendments or supplements to such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (vi) of the Issuers' determination that a post-effective amendment to a Registration Statement would be appropriate. (d) Use their respective reasonable best efforts to prevent the issuance of any order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Notes or the Exchange Notes to be sold by any Participating Broker-Dealer, for sale in any jurisdiction, and, if any such order is issued, to use their respective reasonable best efforts to obtain the withdrawal of any such order at the earliest practicable moment. (e) If a Shelf Registration is filed pursuant to Section 3 and if requested during the Effectiveness Period by the managing underwriter or underwriters (if any), the Holders of a majority in aggregate principal amount of the Registrable Notes being sold in connection with an underwritten offering or any Participating Broker-Dealer, (i) as promptly as practicable incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters (if any), such Holders, any Participating Broker-Dealer or counsel for any of them reasonably request to be included therein, (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) supplement or make amendments to such Registration Statement; provided, however, that the Issuers shall not be required to take any action hereunder that would, in the opinion of counsel to the Issuers, violate applicable laws. (f) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, furnish to each selling Holder of Registrable Notes (with respect to a Registration Statement filed pursuant to Section 3 hereof) and to each such Participating Broker-Dealer who so requests (with respect to any such Registration Statement) and to their respective counsel and each managing underwriter, if any, at the sole expense of the -16- Company, one conformed copy of the Registration Statement or Registration Statements and each post-effective amendment thereto, including financial statements and schedules, and, if requested, all documents incorporated or deemed to be incorporated therein by reference and all exhibits. (g) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, deliver to each selling Holder of Registrable Notes (with respect to a Registration Statement filed pursuant to Section 3 hereof), or each such Participating Broker-Dealer (with respect to any such Registration Statement), as the case may be, their respective counsel, and the underwriters, if any, at the sole expense of the Company, as many copies of the Prospectus or Prospectuses (including each form of preliminary prospectus) and each amendment or supplement thereto and any documents incorporated by reference therein as such Persons may reasonably request; and, subject to the last paragraph of this Section 5, the Issuers hereby consent to the use (other than during any Shelf Suspension Period) of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Notes or each such Participating Broker-Dealer, as the case may be, and the underwriters or agents, if any, and dealers, if any, in connection with the offering and sale of the Registrable Notes covered by, or the sale by Participating Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and any amendment or supplement thereto. (h) Prior to any public offering of Registrable Notes or any delivery of a Prospectus contained in the Exchange Offer Registration Statement by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, use their respective reasonable best efforts to register or qualify, and to cooperate with the selling Holders of Registrable Notes or each such Participating Broker-Dealer, as the case may be, the managing underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any selling Holder, Participating Broker-Dealer, or the managing underwriter or underwriters reasonably request in writing; provided, however, that where Exchange Notes held by Participating Broker-Dealers or Registrable Notes are offered other than through an underwritten offering, the Issuers agree to cause their counsel to perform Blue Sky investigations and file registrations and qualifications required to be filed pursuant to this Section 5(h), keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things reasonably necessary or advisable to enable the -17- disposition in such jurisdictions of the Exchange Notes held by Participating Broker-Dealers or the Registrable Notes covered by the applicable Registration Statement; provided, however, that no Issuer shall be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject. (i) If a Shelf Registration is filed pursuant to Section 3 hereof, cooperate with the selling Holders of Registrable Notes and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Notes to be sold, which certificates shall not bear any restrictive legends and shall be in a form eligible for deposit with The Depository Trust Company; and enable such Registrable Notes to be in such denominations (subject to applicable requirements contained in the Indenture) and registered in such names as the managing underwriter or underwriters, if any, or Holders may request. (j) Use their respective reasonable best efforts to cause the Registrable Notes covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Notes, except as may be required solely as a consequence of the nature of such selling Holder's business, in which case the Issuers will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals. (k) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, upon the occurrence of any event contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare and (subject to Section 5(a) hereof) file with the SEC, at the sole expense of the Company, a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Notes being sold thereunder (with respect to a Registration Statement filed pursuant to Section 3 hereof) or to the purchasers of the Exchange Notes to whom such Prospectus will be delivered by a Participating Broker-Dealer (with respect to any such Registration Statement), any such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make -18- the statements therein, in the light of the circumstances under which they were made, not misleading. (l) Use their respective reasonable best efforts to cause the Registrable Notes covered by a Registration Statement or the Exchange Notes, as the case may be, to be rated with the appropriate rating agencies, if so requested by the Holders of a majority in aggregate principal amount of Registrable Notes covered by such Registration Statement or the Exchange Notes, as the case may be, or the managing underwriter or underwriters, if any. (m) Prior to the effective date of the first Registration Statement relating to the Registrable Notes, (i) provide the Trustee with certificates for the Registrable Notes in a form eligible for deposit with The Depository Trust Company and (ii) provide a CUSIP number for the Registrable Notes. (n) In connection with any underwritten offering of Registrable Notes pursuant to a Shelf Registration, enter into an underwriting agreement as is customary in underwritten offerings of debt securities similar to the Notes, and take all such other actions as are reasonably requested by the managing underwriter or underwriters in order to expedite or facilitate the registration or the disposition of such Registrable Notes and, in such connection, (i) make such representations and warranties to, and covenants with, the underwriters with respect to the business of the Issuers (including any acquired business, properties or entity, if applicable), and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, as are customarily made by issuers to underwriters in underwritten offerings of debt securities similar to the Notes, and confirm the same in writing if and when requested; (ii) obtain the written opinions of counsel to the Issuers, and written updates thereof in form, scope and substance reasonably satisfactory to the managing underwriter or underwriters, addressed to the underwriters covering the matters customarily covered in opinions reasonably requested in underwritten offerings; (iii) obtain "cold comfort" letters and updates thereof in form, scope and substance reasonably satisfactory to the managing underwriter or underwriters from the independent certified public accountants of the Issuers (and, if necessary, any other independent certified public accountants of the Issuers, or of any business acquired by the Issuers, for which financial statements and financial data are, or are required to be, included or incorporated by reference in the Registration Statement), addressed to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings of debt securities similar to the Notes; and (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable to the sellers and underwriters, if any, than those set forth in Section 7 hereof -19- (or such other provisions and procedures reasonably acceptable to Holders of a majority in aggregate principal amount of Registrable Notes covered by such Registration Statement and the managing underwriter or underwriters or agents, if any). The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder. (o) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, make available for inspection by any Initial Purchaser, any selling Holder of such Registrable Notes being sold (with respect to a Registration Statement filed pursuant to Section 3 hereof), or each such Participating Broker-Dealer, as the case may be, any underwriter participating in any such disposition of Registrable Notes, if any, and any attorney, accountant or other agent retained by any such selling Holder or each such Participating Broker-Dealer (with respect to any such Registration Statement), as the case may be, or underwriter (any such Initial Purchasers, Holders, Participating Broker-Dealers, underwriters, attorneys, accountants or agents, collectively, the "Inspectors"), upon written request, at the offices where normally kept, during reasonable business hours, all pertinent financial and other records, pertinent corporate documents and instruments of the Company and subsidiaries of the Company (collectively, the "Records"), as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities, and cause the officers, directors and employees of the Company and any of its subsidiaries to supply all information ("Information") reasonably requested by any such Inspector in connection with such due diligence responsibilities. Each Inspector shall agree in writing that it will keep the Records and Information confidential and that it will not disclose any of the Records or Information that the Company determines, in good faith, to be confidential and notifies the Inspectors in writing are confidential unless (i) the disclosure of such Records or Information is necessary to avoid or correct a misstatement or omission in such Registration Statement or Prospectus, (ii) the release of such Records or Information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such Records or Information is necessary or advisable, in the opinion of counsel for any Inspector, in connection with any action, claim, suit or proceeding, directly or indirectly, involving or potentially involving such Inspector and arising out of, based upon, relating to, or involving this Agreement or the Purchase Agreement, or any transactions contemplated hereby or thereby or arising hereunder or thereunder, or (iv) the information in such Records or Information has been made generally available to the public other than by an Inspector or an "affiliate" (as defined in Rule 405) thereof; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Inspector pursuant to -20- clauses (i) or (ii) of this sentence to permit the Company to obtain a protective order (or waive the provisions of this paragraph (o)) and that such Inspector shall take such actions as are reasonably necessary to protect the confidentiality of such information (if practicable) to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any Inspector. (p) Provide an indenture trustee for the Registrable Notes or the Exchange Notes, as the case may be, and cause the Indenture or the trust indenture provided for in Section 2(a) hereof, as the case may be, to be qualified under the TIA not later than the effective date of the first Registration Statement relating to the Registrable Notes; and in connection therewith, cooperate with the trustee under any such indenture and the Holders of the Registrable Notes, to effect such changes (if any) to such indenture as may be required for such indenture to be so qualified in accordance with the terms of the TIA; and execute, and use their respective reasonable best efforts to cause such trustee to execute, all documents as may be required to effect such changes, and all other forms and documents required to be filed with the SEC to enable such indenture to be so qualified in a timely manner. (q) Comply in all material respects with all applicable rules and regulations of the SEC and make generally available to its securityholders with regard to any applicable Registration Statement, a consolidated earning statement satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than 45 days after the end of any fiscal quarter (or 90 days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Notes are sold to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to underwriters in such an offering, commencing on the first day of the first fiscal quarter of the Company, after the effective date of a Registration Statement, which statements shall cover said 12-month periods. (r) Upon consummation of the Exchange Offer or a Private Exchange, if requested by the Holders of a majority in principal amount of the Notes, obtain an opinion of counsel to the Issuers, in a form customary for underwritten transactions, addressed to the Trustee for the benefit of all Holders of Registrable Notes participating in the Exchange Offer or the Private Exchange, as the case may be, that the Exchange Notes or Private Exchange Notes, as the case may be, the related guarantee and the related indenture constitute legal, valid and binding obligations of the Issuers, enforceable against the Issuers in accordance with their respective terms, subject to customary exceptions and qualifications. If the Exchange Offer or a Private Exchange is to be consummated, upon delivery of the Registrable Notes by Holders to the Company (or to such other Person as directed by the Company), in exchange for the Exchange Notes -21- or the Private Exchange Notes, as the case may be, the Issuers shall mark, or cause to be marked, on such Registrable Notes that such Registrable Notes are being cancelled in exchange for the Exchange Notes or the Private Exchange Notes, as the case may be; in no event shall such Registrable Notes be marked as paid or otherwise satisfied. (s) Cooperate with each seller of Registrable Notes covered by any Registration Statement and each underwriter, if any, participating in the disposition of such Registrable Notes and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc. (the "NASD"). (t) Use their respective reasonable best efforts to take all other steps necessary to effect the registration of the Exchange Notes and/or Registrable Notes covered by a Registration Statement contemplated hereby. The Company may require each seller of Registrable Notes as to which any registration is being effected to furnish to the Company such information regarding such seller and the distribution of such Registrable Notes as the Company may, from time to time, reasonably request. The Company may exclude from such registration the Registrable Notes of any seller so long as such seller fails to furnish such information within a reasonable time after receiving such request and the failure to include any such seller shall not be deemed to be a default hereunder. Each seller as to which any Shelf Registration is being effected agrees to furnish promptly to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such seller not materially misleading. If any such Registration Statement refers to any Holder by name or otherwise as the holder of any securities of any Issuer, then such Holder shall have the right to require (i) the insertion therein of language, in form and substance reasonably satisfactory to such Holder, to the effect that the holding by such Holder of such securities is not to be construed as a recommendation by such Holder of the investment quality of the securities covered thereby and that such holding does not imply that such Holder will assist in meeting any future financial requirements of the Issuers, or (ii) in the event that such reference to such Holder by name or otherwise is not required by the Securities Act or any similar federal statute then in force, the deletion of the reference to such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder of Registrable Notes and each Participating Broker-Dealer agrees by its acquisition of such Registrable Notes or Exchange Notes to be sold by such Participating Broker-Dealer, as the case may be, that, upon actual receipt of any notice from the Company of a Shelf Suspension Period or the happening of any event of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such Holder will forthwith discontinue disposition of such Registrable Notes covered by such Registration Statement or Prospectus or Ex- -22- change Notes to be sold by such Holder or Participating Broker-Dealer, as the case may be, until the end of such Shelf Suspension Period or such Holder's or Participating Broker-Dealer's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the applicable Prospectus may be resumed, and has received copies of any amendments or supplements thereto. In the event that the Issuers shall give any such notice, each of the Applicable Period and the Effectiveness Period shall be extended by the number of days during such periods from and including the date of the giving of such notice to and including the date when each seller of Registrable Notes covered by such Registration Statement or Exchange Notes to be sold by such Participating Broker-Dealer, as the case may be, shall have received (x) the copies of the supplemented or amended Prospectus contemplated by Section 5(k) hereof or (y) the Advice. 6. Registration Expenses All fees and expenses incident to the performance of or compliance with this Agreement by the Issuers shall be borne by the Company, whether or not the Exchange Offer Registration Statement or any Shelf Registration Statement is filed or becomes effective or the Exchange Offer is consummated, including, without limitation, (i) all registration and filing fees (including, without limitation, (A) fees with respect to filings required to be made with the NASD in connection with an underwritten offering and (B) fees and expenses of compliance with state securities or Blue Sky laws (including, without limitation, reasonable fees and disbursements of counsel in connection with Blue Sky qualifications of the Registrable Notes or Exchange Notes and determination of the eligibility of the Registrable Notes or Exchange Notes for investment under the laws of such jurisdictions (x) where the holders of Registrable Notes are located, in the case of the Exchange Notes, or (y) as provided in Section 5(h) hereof, in the case of Registrable Notes or Exchange Notes to be sold by a Participating Broker-Dealer during the Applicable Period)), (ii) printing expenses, including, without limitation, expenses of printing certificates for Registrable Notes or Exchange Notes in a form eligible for deposit with The Depository Trust Company and of printing prospectuses if the printing of prospectuses is requested by the managing underwriter or underwriters, if any, by the Holders of a majority in aggregate principal amount of the Registrable Notes included in any Registration Statement or in respect of Registrable Notes or Exchange Notes to be sold by any Participating Broker-Dealer during the Applicable Period, as the case may be, (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Issuers and, in the case of a Shelf Registration, reasonable fees and disbursements of one special counsel for all of the sellers of Registrable Notes (exclusive of any counsel retained pursuant to Section 7 hereof), (v) fees and disbursements of all independent certified public accountants referred to in Section 5(n)(iii) hereof (including, without limitation, the expenses of any "cold comfort" letters required by or incident to such performance), (vi) Securities Act liability insurance, if the Issuers desire such insurance, (vii) fees and expenses of all other Persons retained by the -23- Issuers, (viii) internal expenses of the Issuers (including, without limitation, all salaries and expenses of officers and employees of the Issuers performing legal or accounting duties), (ix) the expense of any annual audit, (x) any fees and expenses incurred in connection with the listing of the securities to be registered on any securities exchange, and the obtaining of a rating of the securities, in each case, if applicable and (xi) the expenses relating to printing, word processing and distributing all Registration Statements, underwriting agreements, indentures and any other documents necessary in order to comply with this Agreement. Notwithstanding the foregoing or anything to the contrary in this Agreement, each Holder shall pay all underwriting discounts and commissions of any underwriters with respect to any Registrable Notes sold by or on behalf of it. 7. Indemnification and Contribution. (a) Each of the Issuers agree jointly and severally, to indemnify and hold harmless each Holder of Registrable Notes and each Participating Broker-Dealer selling Exchange Notes during the Applicable Period, and each Person, if any, who controls such Person or its affiliates within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, a "Participant") against any losses, claims, damages or liabilities to which any Participant may become subject under the Securities Act, the Exchange Act or otherwise, insofar as any such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon: (i) any untrue statement or alleged untrue statement made by any Issuer contained in any application or any other document or any amendment or supplement thereto executed by any Issuer based upon written information furnished by or on behalf of any Issuer filed in any jurisdiction in order to qualify the Notes under the securities or "Blue Sky" laws thereof or filed with the SEC or any securities association or securities exchange (each, an "Application"); (ii) any untrue statement or alleged untrue statement of any material fact contained in any Registration Statement (or any amendment thereto) or Prospectus (as amended or supplemented if any of the Issuers shall have furnished any amendments or supplements thereto) or any preliminary prospectus; or (iii) the omission or alleged omission to state, in any Registration Statement (or any amendment thereto) or Prospectus (as amended or supplemented if any of the Issuers shall have furnished any amendments or supplements thereto) or any preliminary prospectus or any Application or any other document or any amendment or supplement thereto, a material fact required to be stated therein or necessary to make the statements therein not misleading; and will reimburse, as incurred, the Participant for any legal or other expenses incurred by the Participant in connection with investigating, defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action; pro- -24- vided, however, none of the Issuers will be liable in any such case to the extent that any such loss, claim, damage, or liability arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in any Registration Statement (or any amendment thereto) or Prospectus (as amended or supplemented if any of the Issuers shall have furnished any amendments or supplements thereto) or any preliminary prospectus or Application or any amendment or supplement thereto in reliance upon and in conformity with information relating to any Participant furnished to the Issuers by such Participant specifically for use therein and provided, further, that with respect to any untrue statement or omission or alleged untrue statement or omission made in the prospectus, or any amendment or supplement thereto, or any preliminary prospectus relating to a Shelf Registration Statement, the indemnity contained in this Section 7 shall not inure to the benefit of any Participant from whom the Person asserting any such loss, claim, damage or liability purchased the Notes concerned to the extent that a prospectus relating to such Notes was required to be delivered to such Person, and there was not given or sent to such Person, at or prior to the written confirmation of the sale of such Notes to such Person, a copy of the final prospectus (in the case of any such preliminary prospectus) or a prospectus supplement (in any other case) if the Company had previously furnished copies thereof to such Participant, and such untrue statement or omission or alleged untrue statement or omission was corrected in such final prospectus or prospectus amendment or supplement. The indemnity provided for in this Section 7 will be in addition to any liability that the Issuers may otherwise have to the indemnified parties. The Issuers shall not be liable under this Section 7 for any settlement of any claim or action effected without their prior written consent, which shall not be unreasonably withheld. (b) Each Participant, severally and not jointly, agrees to indemnify and hold harmless the Issuers, their directors, their officers and each person, if any, who controls the Issuers within the meaning of Section 15 of the Act or Section 20 of the Exchange Act against any losses, claims, damages or liabilities to which the Issuers or any such director, officer or controlling person may become subject under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any Registration Statement or Prospectus, any amendment or supplement thereto, or any preliminary prospectus, or (ii) the omission or the alleged omission to state therein a material fact necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning such Participant, furnished to the Issuers by the Participant, specifically for use therein; and subject to the limitation set forth immediately preceding this clause, will reimburse, as incurred, any reasonable legal or other expenses incurred by the Issuers or any such director, officer or controlling person in connection with investigating or defending against or appearing as a third party witness in connection with any such loss, claim, damage, liability or action in respect thereof. The indemnity provided for in this Section 7 will be in addition to -25- any liability that the Participants may otherwise have to the indemnified parties. The Participants shall not be liable under this Section 7 for any settlement of any claim or action effected without their consent, which shall not be unreasonably withheld. The Issuers shall not, without the prior written consent of such Participant, effect any settlement or compromise of any pending or threatened proceeding in respect of which such Participant is or could have been a party, or indemnity could have been sought hereunder by such Participant, unless such settlement (A) includes an unconditional written release of such Participant, in form and substance reasonably satisfactory to such Participant, from all liability on claims that are the subject matter of such proceeding and (B) does not include any statement as to an admission of fault, culpability or failure to act by or on behalf of such Participant. (c) Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action for which such indemnified party is entitled to indemnification under this Section 7, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party of the commencement thereof in writing; but the omission to so notify the indemnifying party (i) will not relieve it from any liability under paragraph (a) or (b) above unless and to the extent such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraphs (a) and (b) above. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party; provided, however, that if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have been advised by counsel that there may be one or more legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, or (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after receipt by the indemnifying party of notice of the institution of such action, then, in each such case, the indemnifying party shall not have the right to direct the defense of such action on behalf of such indemnified party or parties and such indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified party under this Section 7 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party shall -26- have employed separate counsel in accordance with the proviso to the immediately preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated by Participants who sold a majority in interest of the Registrable Notes and Exchange Notes sold by all such Participants in the case of paragraph (a) of this Section 7 or the Issuers in the case of paragraph (b) of this Section 7, representing the indemnified parties under such paragraph (a) or paragraph (b), as the case may be, who are parties to such action or actions) or (ii) the indemnifying party has authorized in writing the employment of counsel for the indemnified party at the expense of the indemnifying party. All fees and expenses reimbursed pursuant to this paragraph (c) shall be reimbursed as they are incurred. After such notice from the indemnifying party to such indemnified party, the indemnifying party will not be liable for the costs and expenses of any settlement of such action effected by such indemnified party without the prior written consent of the indemnifying party (which consent shall not be unreasonably withheld), unless such indemnified party waived in writing its rights under this Section 7, in which case the indemnified party may effect such a settlement without such consent. (d) In circumstances in which the indemnity agreement provided for in the preceding paragraphs of this Section 7 is unavailable to, or insufficient to hold harmless, an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof), each indemnifying party, in order to provide for just and equitable contribution, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect (i) the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party on the other from the offering of the Notes or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, not only such relative benefits but also the relative fault of the indemnifying party or parties on the one hand and the indemnified party on the other in connection with the statements or omissions or alleged statements or omissions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative benefits received by the Company on the one hand and such Participant on the other shall be deemed to be in the same proportion as the total proceeds from the offering (before deducting expenses) of the Notes received by the Company bear to the total net profit received by such Participant in connection with the sale of the Notes. The relative fault of the parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand, or the Participants on the other, the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission or alleged statement or omission, and any other equitable considerations appropriate in the circumstances. The parties agree that it would not be equitable if the amount of such contribution -27- were determined by pro rata or per capita allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the first sentence of this paragraph (d). Notwithstanding any other provision of this paragraph (d), no Participant shall be obligated to make contributions hereunder that in the aggregate exceed the total net profit received by such Participant in connection with the sale of the Notes, less the aggregate amount of any damages that such Participant has otherwise been required to pay by reason of the untrue or alleged untrue statements or the omissions or alleged omissions to state a material fact, and no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this paragraph (d), each person, if any, who controls a Participant within the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Participants, and each director of the Issuers, each officer of the Issuers and each person, if any, who controls the Issuers within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall have the same rights to contribution as the Issuers. 8. Rules 144 and 144A The Issuers covenant and agree that they will file the reports required to be filed by them under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder in a timely manner in accordance with the requirements of the Securities Act and the Exchange Act and, if at any time the Company or any Guarantor is not required to file such reports, the Company or such Guarantor, as the case may be, will, upon the request of any Holder or beneficial owner of Registrable Notes, make available such information necessary to permit sales pursuant to Rule 144A. The Issuers further covenant and agree, for so long as any Registrable Notes remain outstanding that they will take such further action as any Holder of Registrable Notes may reasonably request, all to the extent required from time to time to enable such holder to sell Registrable Notes without registration under the Securities Act within the limitation of the exemptions provided by Rule 144(k) under the Securities Act and Rule 144A. 9. Underwritten Registrations If any of the Registrable Notes covered by any Shelf Registration are to be sold in an underwritten offering, the investment banker or investment bankers and manager or managers that will manage the offering will be selected by the Holders of a majority in aggregate principal amount of such Registrable Notes included in such offering and shall be reasonably acceptable to the Company. No Holder of Registrable Notes may participate in any underwritten registration hereunder unless such Holder (a) agrees to sell such Holder's Registrable Notes on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder -28- to approve such arrangements and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements. 10. Miscellaneous (a) No Inconsistent Agreements. None of the Issuers has, as of the date hereof, and none of the Issuers shall, after the date of this Agreement, enter into any agreement with respect to any of its securities that is inconsistent with the rights granted to the Holders of Registrable Notes in this Agreement or otherwise conflicts with the provisions hereof. The rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of the Issuers' other issued and outstanding securities under any such agreements. None of the Issuers will enter into any agreement with respect to any of their securities that will grant to any Person piggy-back registration rights with respect to any Registration Statement. (b) Adjustments Affecting Registrable Notes. The Issuers shall not, directly or indirectly, take any action with respect to the Registrable Notes as a class that would adversely affect the ability of the Holders of Registrable Notes to include such Registrable Notes in a registration undertaken pursuant to this Agreement. (c) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, otherwise than with the prior written consent of (I) the Issuers, and (II)(A) the Holders of not less than a majority in aggregate principal amount of the then outstanding Registrable Notes and (B) in circumstances that would adversely affect the Participating Broker-Dealers, the Participating Broker-Dealers holding not less than a majority in aggregate principal amount of the Exchange Notes held by all Participating Broker-Dealers; provided, however, that Section 7 and this Section 10(c) may not be amended, modified or supplemented without the prior written consent of each Holder and each Participating Broker-Dealer (including any person who was a Holder or Participating Broker-Dealer of Registrable Notes or Exchange Notes, as the case may be, disposed of pursuant to any Registration Statement) affected by any such amendment, modification or supplement. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of Holders of Registrable Notes whose securities are being sold pursuant to a Registration Statement and that does not directly or indirectly affect, impair, limit or compromise the rights of other Holders of Registrable Notes may be given by Holders of at least a majority in aggregate principal amount of the Registrable Notes being sold pursuant to such Registration Statement. (d) Notices. All notices and other communications (including, without limitation, any notices or other communications to the Trustee) provided for or permitted here- -29- hereunder shall be made in writing by hand-delivery, registered first-class mail, next-day air courier or facsimile: (i) if to a Holder of the Registrable Notes or any Participating Broker-Dealer, at the most current address of such Holder or Participating Broker-Dealer, as the case may be, set forth on the records of the registrar under the Indenture, with a copy in like manner to the Initial Purchasers as follows: Deutsche Bank Securities Inc. 31 West 52nd Street New York, New York 10019 Facsimile No.: (646) 324-7467 Attention: Corporate Finance Department with a copy to: Cahill Gordon & Reindel 80 Pine Street New York, New York 10005 Facsimile No.: (212) 269-5420 Attention: John A. Tripodoro, Esq. (ii) if to the Initial Purchasers, at the address specified in Section 10(d)(i); (iii) if to the Issuers, at the address as follows: Dole Food Company, Inc. One Dole Drive Westlake Village, CA 91362 Facsimile No.: Attention: C. Michael Carter, Esq. with a copy to: Paul, Hastings, Janofsky & Walker LLP 695 Town Center Drive Costa Mesa, CA 92626 Facsimile No.: Attention: Peter Tennyson, Esq. All such notices and communications shall be deemed to have been duly given: when delivered by hand, if personally delivered; five Business Days after being deposited in -30- the mail, postage prepaid, if mailed; one Business Day after being timely delivered to a next-day air courier; and upon written confirmation, if sent by facsimile. Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee at the address and in the manner specified in such Indenture. (e) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties hereto, the Holders and the Participating Broker-Dealers; provided, however, that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Notes in violation of the terms of the Purchase Agreement or the Indenture. (f) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. (g) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD REQUIRE THE APPLICATION OF ANY OTHER LAW. (i) Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable. (j) Notes Held by the Issuers or Their Affiliates. Whenever the consent or approval of Holders of a specified percentage of Registrable Notes is required hereunder, Registrable Notes held by the Issuers or their affiliates (as such term is defined in Rule 405 under -31- the Securities Act) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage. (k) Third-Party Beneficiaries. Holders of Registrable Notes and Participating Broker-Dealers are intended third-party beneficiaries of this Agreement, and this Agreement may be enforced by such Persons. (l) Entire Agreement. This Agreement, together with the Purchase Agreement and the Indenture, is intended by the parties as a final and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein and therein and any and all prior oral or written agreements, representations, or warranties, contracts, understandings, correspondence, conversations and memoranda between the Holders on the one hand and the Issuers on the other, or between or among any agents, representatives, parents, subsidiaries, affiliates, predecessors in interest or successors in interest with respect to the subject matter hereof and thereof are merged herein and replaced hereby. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. DOLE FOOD COMPANY, INC. By: /s/ Lawrence A. Kern ------------------------------ Name: Lawrence A. Kern Title: President and COO THE GUARANTORS NAMED IN SCHEDULE 1 ATTACHED HERETO By: /s/ C. Michael Carter ------------------------------ Name: C. Michael Carter Title: Vice President The foregoing Agreement is hereby confirmed and accepted as of the date first above written. DEUTSCHE BANK SECURITIES INC. By: /s/ Mark Fedorcik ---------------------------------------------- Name: Mark Fedorcik Title: Director By: /s/ William Frauen ---------------------------------------------- Name: William Frauen Title: Managing Director BANC OF AMERICA SECURITIES LLC By: /s/ James G. Rose, Jr. ---------------------------------------------- Name: James G. Rose, Jr. Title: Managing Director SCOTIA CAPITAL (USA) INC. By: /s/ Greg Woynarski ---------------------------------------------- Name: Greg Woynarski Title: Managing Director FLEET SECURITIES, INC. By: /s/ Christopher K. Wall ---------------------------------------------- Name: Christopher K. Wall Title: Vice President SG COWEN SECURITIES CORPORATION By: /s/ Neil R. Parehi ---------------------------------------------- Name: Neil R. Parehi Title: Managing Director BMO NESBITT BURNS CORP. By: /s/ James J. Goll ---------------------------------------------- Name: James J. Goll Title: Managing Director -2- -----END PRIVACY-ENHANCED MESSAGE-----

EX-3.1

                                                                     EXHIBIT 3.1

                              AMENDED AND RESTATED
                          CERTIFICATE OF INCORPORATION
                                       OF
                             DOLE FOOD COMPANY, INC.

FIRST: The name of this Corporation is Dole Food Company, Inc.

SECOND: Its registered office in the State of Delaware is to be located at 2711
Centerville Road, Suite 400, in the City of Wilmington, County of New Castle,
Zip Code 19808. The registered agent in charge thereof is Corporation Service
Company.

THIRD: The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
Delaware.

FOURTH: The total number of shares of stock which this Corporation is authorized
to issue is: One Thousand Shares (1,000) with a par value of $.001 per share.

FIFTH: The Board of Directors shall have the power to adopt, amend or repeal the
bylaws.

SIXTH: No director shall be personally liable to the Corporation or its
stockholders for monetary damages for any breach of fiduciary duty by such
director as a director. Notwithstanding the foregoing sentence, a director shall
be liable to the extent provided by applicable law, (i) for breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) pursuant to Section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived an
improper personal benefit. No amendment to or repeal of this Article Sixth shall
apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment.

EX-3.2

                                                                     EXHIBIT 3.2

                                     BY-LAWS

                                       OF

                            DOLE FOOD COMPANY, INC.,
                             A DELAWARE CORPORATION

                           (EFFECTIVE MARCH 28, 2003)



                                TABLE OF CONTENTS



                                                                                                Page
                                                                                                ----
                                                                                             
ARTICLE I       OFFICES......................................................................    1

     Section 1.01          REGISTERED OFFICE.................................................    1
     Section 1.02          PRINCIPAL OFFICE..................................................    1
     Section 1.03          OTHER OFFICES.....................................................    1

ARTICLE II      MEETINGS OF STOCKHOLDERS.....................................................    1

     Section 2.01          ANNUAL MEETINGS...................................................    1
     Section 2.02          SPECIAL MEETINGS..................................................    1
     Section 2.03          PLACE OF MEETINGS.................................................    2
     Section 2.04          NOTICE OF MEETINGS................................................    2
     Section 2.05          QUORUM............................................................    2
     Section 2.06          VOTING............................................................    3
     Section 2.07          LIST OF STOCKHOLDERS..............................................    4
     Section 2.08          INSPECTOR OF ELECTION.............................................    4
     Section 2.09          STOCKHOLDER ACTION WITHOUT MEETINGS...............................    4
     Section 2.10          RECORD DATE.......................................................    4

ARTICLE III     BOARD OF DIRECTORS...........................................................    5

     Section 3.01          GENERAL POWERS....................................................    5
     Section 3.02          NUMBER AND TERM...................................................    5
     Section 3.03          ELECTION OF DIRECTORS.............................................    6
     Section 3.04          RESIGNATION AND REMOVAL...........................................    6
     Section 3.05          VACANCIES.........................................................    6
     Section 3.06          PLACE OF MEETING; TELEPHONE CONFERENCE MEETING....................    6
     Section 3.07          FIRST MEETING.....................................................    6
     Section 3.08          REGULAR MEETINGS..................................................    7
     Section 3.09          SPECIAL MEETINGS..................................................    7
     Section 3.10          QUORUM AND ACTION.................................................    7
     Section 3.11          ACTION BY CONSENT.................................................    7
     Section 3.12          COMPENSATION......................................................    7
     Section 3.13          COMMITTEES........................................................    8
     Section 3.14          OFFICERS OF THE BOARD.............................................    8

ARTICLE IV      OFFICERS.....................................................................    8

     Section 4.01          OFFICERS..........................................................    8
     Section 4.02          ELECTION AND TERM.................................................    8
     Section 4.03          SUBORDINATE OFFICERS..............................................    9
     Section 4.04          REMOVAL AND RESIGNATION...........................................    9
     Section 4.05          VACANCIES.........................................................    9
     Section 4.06          CHAIRMAN OF THE BOARD.............................................    9
     Section 4.07          PRESIDENT.........................................................    9
     Section 4.08          VICE PRESIDENT....................................................    9


By-Law

                                       -i-



                                TABLE OF CONTENTS
                                   (continued)



                                                                                                Page
                                                                                                ----
                                                                                             
     Section 4.09          SECRETARY.........................................................   10
     Section 4.10          TREASURER.........................................................   10
     Section 4.11          CONTROLLER........................................................   10
     Section 4.12          COMPENSATION......................................................   11

ARTICLE V       CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC................................   11

     Section 5.01          EXECUTION OF CONTRACTS............................................   11
     Section 5.02          CHECKS, DRAFTS, ETC...............................................   11
     Section 5.03          DEPOSIT...........................................................   11
     Section 5.04          GENERAL AND SPECIAL BANK ACCOUNTS.................................   11

ARTICLE VI      SHARES AND THEIR TRANSFER....................................................   12

     Section 6.01          CERTIFICATES FOR STOCK............................................   12
     Section 6.02          TRANSFER OF STOCK.................................................   12
     Section 6.03          REGULATIONS.......................................................   12
     Section 6.04          LOST, STOLEN, DESTROYED AND MUTILATED CERTIFICATES................   12
     Section 6.05          REPRESENTATION OF SHARES OF OTHER CORPORATIONS....................   13

ARTICLE VII     INDEMNIFICATION..............................................................   13

     Section 7.01          RIGHT TO INDEMNIFICATION..........................................   13
     Section 7.02          RIGHTS TO ADVANCEMENT OF EXPENSES.................................   13
     Section 7.03          RIGHT OF INDEMNITEE TO BRING SUIT.................................   14
     Section 7.04          NON-EXCLUSIVITY OF RIGHTS.........................................   14
     Section 7.05          INSURANCE.........................................................   15
     Section 7.06          INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION........   15
     Section 7.07          NATURE OF RIGHTS..................................................   15
     Section 7.08          CONSTITUENT CORPORATIONS..........................................   15
     Section 7.09          EMPLOYEE BENEFIT PLANS............................................   15
     Section 7.10          RELIANCE..........................................................   16
     Section 7.11          SEVERABILITY......................................................   16

ARTICLE VIII    MISCELLANEOUS................................................................   16

     Section 8.01          SEAL..............................................................   16
     Section 8.02          WAIVER OF NOTICES.................................................   16
     Section 8.03          LOANS AND GUARANTIES..............................................   16
     Section 8.04          GENDER............................................................   17
     Section 8.05          AMENDMENTS........................................................   17


By-Law

                                      -ii-



                                     BY-LAWS

                                       OF

                            DOLE FOOD COMPANY, INC.,
                             A DELAWARE CORPORATION

                           (EFFECTIVE MARCH 28, 2003)

                                    ARTICLE I

                                     OFFICES

                  Section 1.01   REGISTERED OFFICE. The registered office of
Dole Food Company, Inc. (hereinafter called the "Corporation") shall be at such
place in the State of Delaware as shall be designated by the Board of Directors
(hereinafter called the "Board").

                  Section 1.02   PRINCIPAL OFFICE. The principal office for the
transaction of the business of the Corporation shall be at such location, within
or without the State of Delaware, as shall be designated by the Board.

                  Section 1.03   OTHER OFFICES. The Corporation may also have an
office or offices at such other place or places, either within or without the
State of Delaware, as the Board may from time to time determine or as the
business of the Corporation may require.

                                   ARTICLE II

                            MEETINGS OF STOCKHOLDERS

                  Section 2.01   ANNUAL MEETINGS. Annual meetings of the
stockholders of the Corporation for the purpose of electing directors and for
the transaction of such other proper business as may come before such meetings
may be held at such time, date and place as the Board shall determine by
resolution.

                  Section 2.02   SPECIAL MEETINGS. Special meetings of the
stockholders of the Corporation for any purpose or purposes may be called at any
time by the Chairman of the Board, the Chief Executive Officer, the Board, or by
a committee of the Board which has been duly designated by the Board and whose
powers and authority, as provided in a resolution of the Board or in the
By-Laws, include the power to call such meetings, or by one or more stockholders
holding shares in the aggregate entitled to cast not less than 20% of the votes
at that meeting, but such special meetings may not be called by any other person
or persons; provided, however, that if and to the extent that any special
meeting of stockholders may be called by any other person or persons specified
in any provisions of the Certificate of Incorporation or any amendment thereto
or any certificate filed under Section 151(g) of the General Corporation Law of
the State of Delaware (or its successor statute as in effect from time to time
hereafter), then such



                                       1



special meeting may also be called by the person or persons, in the manner, at
the time and for the purposes so specified.

                  Section 2.03   PLACE OF MEETINGS. All meetings of the
stockholders shall be held at such places, within or without the State of
Delaware, as may from time to time be designated by the person or persons
calling the respective meetings and specified in the respective notices or
waivers of notice thereof.

                  Section 2.04   NOTICE OF MEETINGS. Except as otherwise
required by law, notice of each meeting of the stockholders, whether annual or
special, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting to each stockholder of record entitled to vote at
such meeting by delivering a typewritten or printed notice thereof to him
personally, or by depositing such notice in the United States mail, in a postage
prepaid envelope, directed to him at his address furnished by him to the
Secretary of the Corporation for such purpose or, if he shall not have furnished
to the Secretary his address for such purpose, then at his address last known to
the Secretary, or by transmitting a notice thereof to him at such address by
telegraph, cable or wireless. Except as otherwise expressly required by law, no
publication of any notice of a meeting of the stockholders shall be required.
Every notice of a meeting of the stockholders shall state the place, date and
hour of the meeting, and, in the case of a special meeting shall also state the
purpose or purposes for which the meeting is called. Except as otherwise
expressly required by law, notice of any adjourned meeting of the stockholders
need not be given if the time and place thereof are announced at the meeting at
which the adjournment is taken.

                  Whenever notice is required to be given to any stockholder to
whom (i) notice of two consecutive annual meetings, and all notices of meetings
or of the taking of action by written consent without a meeting to such person
during the period between such two consecutive annual meetings, or (ii) all, and
at least two, payments (if sent by first class mail) of dividends or interest on
securities during a twelve month period, have been mailed addressed to such
person at his address as shown on the records of the Corporation and have been
returned undeliverable, the giving of such notice to such person shall not be
required. Any action or meeting which shall have been taken or held without
notice to such person shall the same force and effect as if such notice had been
duly given. If any such person shall deliver to the Corporation a written notice
setting forth his then current address, the requirement that notice be given to
such person shall be reinstated.

                  No notice need be given to any person with whom communication
is unlawful, nor shall there be any duty to apply for any permanent or license
to give notice to any such person.

                  Section 2.05   QUORUM. Except as provided by law, the holders
of record of a majority in voting interest of the shares of stock of the
Corporation entitled to be voted, present in person or by proxy, shall
constitute a quorum for the transaction of business at any meeting of the
stockholders of the Corporation or any adjournment thereof. The stockholders
present at a duly called or held meeting at which a quorum is present may
continue to do business until adjournment, notwithstanding the withdrawal



                                       2



of enough stockholders to leave less than a quorum. In the absence of a quorum
at any meeting or any adjournment thereof, a majority in voting interest of the
stockholders present in person or by proxy and entitled to vote thereat or, in
the absence therefrom of all the stockholders, any officer entitled to preside
at or to act as secretary of such meeting may adjourn such meeting from time to
time. At any such adjourned meeting at which a quorum is present any business
may be transacted which might have been transacted at the meeting as originally
called.

                  Section 2.06   VOTING.

                  (a)      At each meeting of the stockholders, each stockholder
shall be entitled to vote in person or by proxy each share or fractional share
of the stock of the Corporation which has voting rights on the matter in
question and which shall have been held by him and registered in his name on the
books of the Corporation:

                           (i)      on the date fixed pursuant to Section 2.10
of these By-Laws as the record date for the determination of stockholders
entitled to notice of and to vote at such meeting, or

                           (ii)     if no such record date shall have been so
fixed, then (A) at the close of business on the day next preceding the day on
which notice of the meeting shall be given or (B) if notice of the meeting shall
be waived, at the close of business on the day next preceding the day on which
the meeting shall be held.

                  (b)      Shares of its own stock belonging to the Corporation
or to another corporation, if a majority of the shares entitled to vote in the
election of directors in such other corporation is held, directly or indirectly,
by the Corporation, shall neither be entitled to vote nor be counted for quorum
purposes. Persons holding stock of the Corporation in a fiduciary capacity shall
be entitled to vote such stock. Persons whose stock is pledged shall be entitled
to vote, unless in the transfer by the pledgor on the books of the Corporation
he shall have expressly empowered the pledgee to vote thereon, in which case
only the pledgee, or his proxy, may represent such stock and vote thereon. Stock
having voting power standing of record in the names of two or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in common,
tenants by the entirety or otherwise, or with respect to which two or more
persons have the same fiduciary relationship, shall be voted in accordance with
the provisions of the General Corporation Law of Delaware.

                  (c)      Any such voting rights may be exercised by the
stockholder entitled thereto in person or by his proxy appointed by an
instrument in writing, subscribed by such stockholder or by his attorney
thereunto authorized and delivered to the secretary of the meeting; provided,
however, that no proxy shall be voted or acted upon after three years from its
date unless said proxy shall provide for a longer period. The attendance at any
meeting of a stockholder who may theretofore have given a proxy shall not have
the effect of revoking the same unless he shall in writing so notify the
secretary of the meeting prior to the voting of the proxy. At any meeting of the
stockholders all matters, except as otherwise provided in the Certificate of
Incorporation, in these By-Laws or by law, shall be decided by the vote of a
majority in voting interest



                                       3



of the stockholders present in person or by proxy and entitled to vote thereat
and thereon. The stockholders present at a duly called or held meeting at which
a quorum is present may continue to do business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum. The vote at any meeting of the stockholders on any question need not be
by ballot, unless so directed by the chairman of the meeting. On a vote by
ballot, each ballot shall be signed by the stockholder voting, or by his proxy
if there be such proxy, and it shall state the number of shares voted.

                  Section 2.07   LIST OF STOCKHOLDERS. The Secretary of the
Corporation shall prepare and make, at least ten (10) days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the entire duration thereof, and may be inspected by any stockholder who
is present.

                  Section 2.08   INSPECTOR OF ELECTION. If at any meeting of the
stockholders a vote by written ballot shall be taken on any question, the
chairman of such meeting may appoint an inspector or inspectors of election to
act with respect to such vote. Each inspector so appointed shall first subscribe
an oath faithfully to execute the duties of an inspector at such meeting with
strict impartiality and according to the best of his ability. Such inspectors
shall decide upon the qualification of the voters and shall report the number of
shares represented at the meeting and entitled to vote on such question, shall
conduct and accept the votes, and, when the voting is completed, shall ascertain
and report the number of shares voted respectively for and against the question.
Reports of the inspectors shall be in writing and subscribed and delivered by
them to the Secretary of the Corporation. Inspectors need not be stockholders of
the Corporation, and any officer of the Corporation may be an inspector on any
question other than a vote for or against a proposal in which he shall have a
material interest.

                  Section 2.09   STOCKHOLDER ACTION WITHOUT MEETINGS. Any action
required by the General Corporation Law of the State of Delaware to be taken at
any annual or special meeting of the stockholders, or any action which may be
taken at any annual or special meeting of the stockholders, may be taken without
a meeting, without prior notice and without a vote, if a consent in writing
setting forth the action so taken shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing.

                  Section 2.10   RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a



                                       4



meeting, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the Board
and which record date: (i) in the case of determination of stockholders entitled
to vote at any meeting of stockholders or adjournment thereof, shall, unless
otherwise required by law, not be more than sixty nor less than ten days before
the date of such meeting; (ii) in the case of determination of stockholders
entitled to express consent to corporate action in writing without a meeting,
shall not be more than ten days from the date upon which the resolution fixing
the record date is adopted by the Board; and (iii) in the case of any other
action, shall not be more than sixty days prior to such other action. If no
record date is fixed: (i) the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held; (ii) the record date for determining stockholders
entitled to express consent to corporate action in writing without a meeting
when no prior action of the Board is required by law, shall be the first date on
which a signed written consent setting forth the action taken or proposed to be
taken is delivered to the corporation in accordance with applicable law, or, if
prior action by the Board is required by law, shall be at the close of business
on the day on which the Board adopts the resolution taking such prior action;
and (iii) the record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board may fix a
new record date for the adjourned meeting.

                                  ARTICLE III

                               BOARD OF DIRECTORS

                  Section 3.01   GENERAL POWERS. The property, business and
affairs of the Corporation shall be managed by or under the direction of the
Board, which may exercise all of the powers of the Corporation, except such as
are by the Certificate of Incorporation, by these By-Laws or by law conferred
upon or reserved to the stockholders.

                  Section 3.02   NUMBER AND TERM. The authorized number of
directors of the Corporation shall be fixed from time to time exclusively by the
Board of Directors pursuant to a resolution adopted by a majority of the Whole
Board. Directors shall be elected for a term of office to expire at the next
annual meeting of stockholders after their election, with each director to hold
office until his or her successor shall have been duly elected and qualified.
Directors need not be stockholders of the Corporation. For purposes of these
By-Laws, the term "Whole Board" means the then-total number of authorized
directors (including any vacancies in authorized directorships, regardless of
whether any such vacancy resulted from the creation of a new authorized
directorship or instead from the death, resignation, retirement,
disqualification, or removal from office of a director).



                                       5



                  Section 3.03   ELECTION OF DIRECTORS. The directors shall be
elected by the stockholders of the Corporation, and at each election the persons
receiving the greatest number of votes, up to the number of directors then to be
elected, shall be the persons then elected. The election of directors is subject
to any provisions contained in the Certificate of Incorporation relating
thereto, including any provisions for a classified board.

                  Section 3.04   RESIGNATION AND REMOVAL. Any director of the
Corporation may resign at any time by giving written notice to the Board or to
the Secretary of the Corporation. Any such resignation shall take effect at the
time specified therein, or, if the time is not specified, it shall take effect
immediately upon its receipt; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.

                  Except as otherwise provided by the Certificate of
Incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares then
entitled to vote at an election of directors.

                  Section 3.05   VACANCIES. Except as otherwise provided in
the Certificate of Incorporation, any vacancy in the Board, whether because of
death, resignation, disqualification, an increase in the number of directors, or
any other cause, may be filled by vote of the majority of the remaining
directors, although less than a quorum, or by a sole remaining director. Each
director so chosen to fill a vacancy shall hold office until his successor shall
have been elected and shall qualify or until he shall resign or shall have been
removed. No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of his term of office.

                  Upon the resignation of one or more directors from the Board,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have the power to fill such vacancy
or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each director so chosen shall hold
office as provided hereinabove in the filling of other vacancies.

                  Section 3.06   PLACE OF MEETING; TELEPHONE CONFERENCE
MEETING. The Board may hold any of its meetings at such place or places within
or without the State of Delaware as the Board may from time to time by
resolution designate or as shall be designated by the person or persons calling
the meeting or in the notice or waiver of notice of any such meeting. Directors
may participate in any regular or special meeting of the Board by means of
conference telephone or similar communications equipment pursuant to which all
persons participating in the meeting of the Board can hear each other, and such
participation shall constitute presence in person at such meeting.

                  Section 3.07   FIRST MEETING. The Board shall meet as soon as
practicable after each annual election of directors and notice of such first
meeting shall not be required.



                                       6



                  Section 3.08   REGULAR MEETINGS. Regular meetings of the
Board may be held at such times as the Board shall from time to time by
resolution determine. If any day fixed for a meeting shall be a legal holiday at
the place where the meeting is to be held, then the meeting shall be held at the
same hour and place on the next succeeding business day which is not a legal
holiday. Except as provided by law, notice of regular meetings need not be
given.

                  Section 3.09   SPECIAL MEETINGS. Special meetings of the
Board may be called at any time by the Chairman of the Board or the President or
by any two (2) directors, to be held at the principal office of the Corporation,
or at such other place or places, within or without the State of Delaware, as
the person or persons calling the meeting may designate.

                  Notice of the time and place of special meetings shall be
given to each director either (i) by mailing or otherwise sending to him a
written notice of such meeting, charges prepaid, addressed to him at his address
as it is shown upon the records of the Corporation, or if it is not so shown on
such records or is not readily ascertainable, at the place in which the meetings
of the directors are regularly held, at least seventy-two (72) hours prior to
the time of the holding of such meeting; or (ii) by orally communicating the
time and place of the special meeting to him at least forty-eight (48) hours
prior to the time of the holding of such meeting. Either of the notices as above
provided shall be due, legal and personal notice to such director.

                  Section 3.10   QUORUM AND ACTION. Except as otherwise provided
in these By-Laws or by law, the presence of a majority of the authorized number
of directors shall be required to constitute a quorum for the transaction of
business at any meeting of the Board, and all matters shall be decided at any
such meeting, a quorum being present, by the affirmative votes of a majority of
the directors present. In the absence of a quorum, a majority of directors
present at any meeting may adjourn the same from time to time until a quorum
shall be present. Notice of any adjourned meeting need not be given. The
directors shall act only as a Board, and the individual directors shall have no
power as such.

                  Section 3.11   ACTION BY CONSENT. Any action required or
permitted to be taken at any meeting of the Board or of any committee thereof
may be taken without a meeting if a written consent thereto is signed by all
members of the Board or of such committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board or such committee.
Such action by written consent shall have the same force and effect as the
unanimous vote of such directors.

                  Section 3.12   COMPENSATION. No stated salary need be paid to
directors, as such, for their services but, as fixed from time to time by
resolution of the Board, the directors may receive directors' fees, compensation
and reimbursement for expenses for attendance at directors' meetings, for
serving on committees and for discharging their duties; provided that nothing
herein contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.



                                       7



                  Section 3.13   COMMITTEES. The Board may, by resolution
passed by a majority of the Whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of the committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in place of any
such absent or disqualified member. Any such committee, to the extent provided
in the resolution of the Board, shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to the following: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by
Title 8, Chapter 1 of the Delaware Code to be submitted to stockholders for
approval, or (ii) adopting, amending or repealing any By-Law of the Corporation.

                  Unless the Board otherwise provides, each committee designated
by the Board may make, alter and repeal rules for conduct of its business. In
the absence of such rules each committee shall conduct its business in the same
manner as the Board conducts its business pursuant to these By-Laws. Any such
committee shall keep written minutes of its meetings and report the same to the
Board when required.

                  Section 3.14   OFFICERS OF THE BOARD. A Chairman of the Board
or a Vice Chairman may be appointed from time to time by the Board and shall
have such powers and duties as shall be designated by the Board.

                                   ARTICLE IV

                                    OFFICERS

                  Section 4.01   OFFICERS. The officers of the Corporation
shall be a President, a Secretary and a Treasurer. The Corporation may also
have, at the discretion of the Board, a Chairman of the Board, a Chief Executive
Officer, one or more Vice Presidents, one or more Assistant Vice Presidents, one
or more Assistant Secretaries, one or more Assistant Treasurers, a Controller
and such other officers as may be appointed in accordance with the provisions of
Section 4.03 of these By-Laws. Any number of offices may be held by the same
person. The Board of Directors may from time to time delegate the powers or
duties of any officer to any other officers or agents, notwithstanding any
provision hereof. The salaries of all officers of the Corporation shall be fixed
from time to time by the Board.

                  Section 4.02   ELECTION AND TERM. The officers of the
Corporation, except such officers as may be appointed in accordance with the
provisions of Section 4.03 or Section 4.05 of these By-Laws, shall be chosen
annually by the Board, and each shall hold his office until he shall resign or
shall be removed or otherwise disqualified to serve, or until his successor
shall be elected and qualified.



                                       8



                  Section 4.03   SUBORDINATE OFFICERS. The Board may appoint,
or may authorize the President or Chief Executive Officer, if any, to appoint,
such other officers as the business of the Corporation may require, each of whom
shall have such authority and perform such duties as are provided in these
By-Laws or as the Board, the President or the Chief Executive Officer, if any,
from time to time may specify, and shall hold office until he shall resign or
shall be removed or otherwise disqualified to serve.

                  Section 4.04   REMOVAL AND RESIGNATION. Any officer may be
removed, with or without cause, by a majority of the directors at the time in
office, at any regular or special meeting of the Board, or, except in case of an
officer chosen by the Board, by the President or Chief Executive Officer, if
any, upon whom such power of removal may be conferred by the Board.

                  Any officer may resign at any time by giving written notice to
the Board, the Chairman of the Board, the President, the Chief Executive Officer
or the Secretary of the Corporation. Any such resignation shall take effect at
the date of the receipt of such notice or at any later time specified therein;
and unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.

                  Section 4.05   VACANCIES. A vacancy in any office because of
death, resignation, removal, disqualification or any other cause shall be filled
in the manner prescribed in the By-Laws for the regular appointments to such
office.

                  Section 4.06   CHAIRMAN OF THE BOARD. The Chairman of the
Board shall be the chief executive officer of the Corporation. Subject to the
provisions of these By-Laws and to the direction of the Board of Directors, he
or she shall have the responsibility for the general management and control of
the business and affairs of the Corporation and shall perform all duties and
have all powers which are commonly incident to the office of chief executive or
which are delegated to him or her by the Board of Directors. He or she shall
have power to sign all stock certificates, contracts and other instruments of
the Corporation that are authorized and shall have general supervision and
direction of all of the other officers, employees and agents of the Corporation.

                  Section 4.07   PRESIDENT. The President shall be the chief
operating officer of the Corporation. He or she shall have general
responsibility for the management and control of the operations of the
Corporation and shall perform all duties and have all powers which are commonly
incident to the office of chief operating officer or which are delegated to him
or her by the Board of Directors. Subject to the direction of the Board of
Directors and the Chairman of the Board, the President shall have power to sign
all stock certificates, contracts and other instruments of the Corporation that
are authorized and shall have general supervision of all of the other officers
(other than the Chairman of the Board and officers who report directly to the
Chairman of the Board), employees and agents of the Corporation.

                  Section 4.08   VICE PRESIDENT. The Vice President(s), if any,
shall exercise and perform such powers and duties with respect to the
administration of the business and affairs of the Corporation as from time to
time may be assigned to each of them by the President, by the Chief Executive
Officer, if any, by the Chairman of the



                                       9



Board, if any, by the Board or as is prescribed by the By-Laws. In the absence
or disability of the President and Chief Executive Officer, if any, the Vice
Presidents, in order of their rank as fixed by the Board, or if not ranked, the
Vice President designated by the Board, shall perform all of the duties of the
President and when so acting shall have all of the powers of and be subject to
all the restrictions upon the President.

                  Section 4.09   SECRETARY. The Corporate Secretary shall keep,
or cause to be kept, a book of minutes at the principal office for the
transaction of the business of the Corporation, or such other place as the Board
may order, of all meetings of directors and stockholders, with the time and
place of holding, whether regular or special, and if special, how authorized and
the notice thereof given, the names of those present at directors' meetings, the
number of shares present or represented at stockholders' meetings and the
proceedings thereof.

                  The Corporate Secretary shall keep, or cause to be kept, at
the principal office for the transaction of the business of the Corporation or
at the office of the Corporation's transfer agent, a share register, or a
duplicate share register, showing the names of the stockholders and their
addresses, the number and classes of shares held by each, the number and date of
certificates issued for the same, and the number and date of cancellation of
every certificate surrendered for cancellation.

                  The Corporate Secretary shall give, or cause to be given,
notice of all the meetings of the stockholders and of the Board required by
these By-Laws or by law to be given, and he shall keep the seal of the
Corporation in safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the Board or these By-Laws. If for any
reason the Corporate Secretary shall fail to give notice of any special meeting
of the Board called by one or more of the persons identified in Section 3.09 of
these By-Laws, or if he shall fail to give notice of any special meeting of the
stockholders called by one or more of the persons identified in Section 2.02 of
these By-Laws, then any such person or persons may give notice of any such
special meeting.

                  Section 4.10   TREASURER. Except insofar as some other officer
or employee shall from time to time be expressly authorized and instructed so to
do, the Treasurer shall receive and provide receipt for, either personally or by
an employee authorized by the Treasurer so to do, all checks and drafts of the
Corporation, pay all debts of the Corporation under direction of the Board of
Directors, keep safely all notes, stocks, bonds, deeds and all evidences of
property belonging to the Corporation, have custody of all moneys either
belonging to the Corporation, or in its charge, and properly care for the same
and shall have such other powers and duties as the Board of Directors may from
time to time prescribe.

                  Section 4.11   CONTROLLER. The Controller shall be the
principal accounting officer of the Corporation. Except insofar as some other
officer or employee shall from time to time be expressly authorized so to do,
the Controller shall keep all financial books of the Corporation, keep thorough
and proper accounts of the financial transactions of the Corporation and render
statements of the same in such form and at such times as the Board of Directors
shall require, maintain a system of budgeting control, prepare and render to
such governmental officials having the right to so require, tax returns



                                       10



and all exhibits, reports and other instruments required by law and have such
other powers or duties as may be assigned to him from time to time by the Board
of Directors.

                  Section 4.12   COMPENSATION. The compensation of the officers
of the Corporation, if any, shall be fixed from time to time by the Board.

                                   ARTICLE V

                 CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.

                  Section 5.01   EXECUTION OF CONTRACTS. The Board, except as
otherwise provided in these By-Laws, may authorize any officer or officers,
agent or agents, to enter into any contract or execute any instrument in the
name and on behalf of the Corporation, and such authority may be general or
confined to specific instances; and unless so authorized by the Board or by
these By-Laws, no officer, agent or employee shall have any power or authority
to bind the Corporation by any contract or engagement or to pledge its credit or
to render it liable for any purpose or in any amount.

                  Section 5.02   CHECKS, DRAFTS, ETC. All checks, drafts or
other orders for payment of money, notes or other evidence of indebtedness,
issued in the name of or payable to the Corporation, shall be signed or endorsed
by such person or persons and in such manner as, from time to time, shall be
determined by resolution of the Board. Each such person shall give such bond, if
any, as the Board may require.

                  Section 5.03   DEPOSIT. All funds of the Corporation not
otherwise employed shall be deposited from time to time to the credit of the
Corporation in such banks, trust companies or other depositories as the Board
may select, or as may be selected by any officer or officers, assistant or
assistants, agent or agents, attorney or attorneys, of the Corporation to whom
such power shall have been delegated by the Board. For the purpose of deposit
and for the purpose of collection for the account of the Corporation, the
President, the Chief Executive Officer, any Vice President or the Treasurer (or
any other officer or officers, assistant or assistants, agent or agents, or
attorney or attorneys of the Corporation who shall be determined by the Board
from time to time) may endorse, assign and deliver checks, drafts and other
orders for the payment of money which are payable to the order of the
Corporation.

                  Section 5.04   GENERAL AND SPECIAL BANK ACCOUNTS. The Board
from time to time may authorize the opening and keeping of general and special
bank accounts with such banks, trust companies or other depositories as the
Board may select or as may be selected by an officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of the Corporation to whom
such power shall have been delegated by the Board. The Board may make such
special rules and regulations with respect to such bank accounts, not
inconsistent with the provisions of these By-Laws, as it may deem expedient.



                                       11



                                   ARTICLE VI

                            SHARES AND THEIR TRANSFER

                  Section 6.01   CERTIFICATES FOR STOCK. Every owner of stock
of the Corporation shall be entitled to have a certificate or certificates, in
such form as the Board shall prescribe, certifying the number and class of
shares of the stock of the Corporation owned by him. The certificates
representing shares of such stock shall be numbered in the order in which they
shall be issued and shall be signed in the name of the Corporation by the
Chairman of the Board, the President or a Vice President and by the Secretary or
an Assistant Secretary or by the Treasurer or an Assistant Treasurer. Any or all
of the signatures on the certificates may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon any such certificate shall thereafter have ceased to be such
officer, transfer agent or registrar before such certificate is issued, such
certificate may nevertheless be issued by the Corporation with the same effect
as though the person who signed such certificate, or whose facsimile signature
shall have been placed thereupon, were such officer, transfer agent or registrar
at the date of issue. A record shall be kept of the respective names of the
persons, firms or corporations owning the stock represented by such
certificates, the number and class of shares represented by such certificates,
respectively, and the respective dates thereof, and in case of cancellation, the
respective dates of cancellation. Every certificate surrendered to the
Corporation for exchange or transfer shall be cancelled, and no new certificate
or certificates shall be issued in exchange for any existing certificate until
such existing certificate shall have been so cancelled, except in cases provided
for in Section 6.04 of these By-Laws.

                  Section 6.02   TRANSFER OF STOCK. Transfer of shares of
stock of the Corporation shall be made only on the books of the Corporation by
the registered holder thereof, or by his attorney thereunto authorized by power
of attorney duly executed and filed with the Secretary, or with a transfer clerk
or a transfer agent appointed as provided in Section 6.03 of these By-Laws, and
upon surrender of the certificate or certificates for such shares properly
endorsed and the payment of all taxes thereon. The person in whose name shares
of stock stand on the books of the Corporation shall be deemed the owner thereof
for all purposes as regards the Corporation. Whenever any transfer of shares
shall be made for collateral security, and not absolutely, such fact shall be
stated expressly in the entry of transfer if, when the certificate or
certificates shall be presented to the Corporation for transfer, both the
transferor and the transferee request the Corporation to do so.

                  Section 6.03   REGULATIONS. The Board may make such rules
and regulations as it may deem expedient, not inconsistent with these By-Laws,
concerning the issue, transfer and registration of certificates for shares of
the stock of the Corporation. The Board may appoint, or authorize any officer or
officers to appoint, one or more transfer clerks or one or more transfer agents
and one or more registrars, and may require all certificates for stock to bear
the signature or signatures of any of them.

                  Section 6.04   LOST, STOLEN, DESTROYED AND MUTILATED
CERTIFICATES. In any case of loss, theft, destruction, or mutilation of any
certificate



                                       12


of stock, another may be issued in its place upon proof of such loss, theft,
destruction, or mutilation and upon the giving of a bond of indemnity to the
Corporation in such form and in such sums as the Board may direct; provided,
however, that a new certificate may be issued without requiring any bond when,
in the judgment of the Board, it is proper to do so.

                  Section 6.05   REPRESENTATION OF SHARES OF OTHER CORPORATIONS.
The President or any Vice President and the Secretary or any Assistant Secretary
of this Corporation are authorized to vote, represent and exercise on behalf of
this Corporation all rights incident to all shares of any other corporation or
corporations standing in the name of this Corporation. The authority herein
granted to said officers to vote or represent on behalf of this Corporation any
and all shares held by this Corporation in any other corporation or corporations
may be exercised either by such officers in person or by any person authorized
so to do by proxy or power of attorney duly executed by said officers.

                                  ARTICLE VII

                                 INDEMNIFICATION

                  Section 7.01   RIGHT TO INDEMNIFICATION. Each person who was
or is made a party or is threatened to be made a party to or is otherwise
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that he or she is or was a director or an officer of the Corporation or is
or was serving at the request of the Corporation as a director, officer or
trustee of another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director, officer or trustee or in any other
capacity while serving as a director, officer or trustee, shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by the
Delaware General Corporation Law, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than such law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith; provided, however, that,
except as provided in Section 7.03 of these By-Laws with respect to proceedings
to enforce rights to indemnification, the Corporation shall indemnify any such
indemnitee in connection with a proceeding (or part thereof) initiated by such
indemnitee only if such proceeding (or part thereof) was authorized by the Board
of Directors of the Corporation.

                  Section 7.02   RIGHT TO ADVANCEMENT OF EXPENSES. In addition
to the right to indemnification conferred in Section 7.01 of these By-Laws, an
indemnitee shall also have the right to be paid by the Corporation the expenses
(including attorney's fees) incurred in defending any such proceeding in advance
of its final disposition (hereinafter an "advancement of expenses"); provided,
however, that, if the Delaware General Corporation Law requires, an advancement
of expenses incurred by an indemnitee



                                       13


in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section 7.02 or otherwise.

                  Section 7.03   RIGHT OF INDEMNITEE TO BRING SUIT. If a claim
under Section 7.01 or 7.02 of these By-Laws is not paid in full by the
Corporation within sixty (60) days after a written claim has been received by
the Corporation, except in the case of a claim for an advancement of expenses,
in which case the applicable period shall be twenty (20) days, the indemnitee
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If successful in whole or in part in any such suit,
or in a suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the indemnitee shall be entitled to be
paid also the expense of prosecuting or defending such suit. In (i) any suit
brought by the indemnitee to enforce a right to indemnification hereunder (but
not in a suit brought by the indemnitee to enforce a right to an advancement of
expenses) it shall be a defense that, and (ii) in any suit brought by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the Corporation shall be entitled to recover such expenses upon a
final adjudication that, the indemnitee has not met any applicable standard for
indemnification set forth in the Delaware General Corporation Law. Neither the
failure of the Corporation (including its directors who are not parties to such
action, a committee of such directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its directors who are not parties to such action, a
committee of such directors, independent legal counsel, or its stockholders)
that the indemnitee has not met such applicable standard of conduct, shall
create a presumption that the indemnitee has not met the applicable standard of
conduct or, in the case of such a suit brought by the indemnitee, be a defense
to such suit. In any suit brought by the indemnitee to enforce a right to
indemnification or to an advancement of expenses hereunder, or brought by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the indemnitee is not entitled to be
indemnified, or to such advancement of expenses, under this Article VII or
otherwise shall be on the Corporation.

                  Section 7.04   NON-EXCLUSIVITY OF RIGHTS. The rights to
indemnification and to the advancement of expenses conferred in this Article VII
shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, the Corporation's Certificate of Incorporation,
By-Laws, agreement, vote of stockholders or directors or otherwise.



                                       14


                  Section 7.05   INSURANCE. The Corporation may maintain
insurance, at its expense, to protect itself and any director, officer, employee
or agent of the Corporation or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss, whether or not
the Corporation would have the power to indemnify such person against such
expense, liability or loss under the Delaware General Corporation Law.

                  Section 7.06   INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE
CORPORATION. The Corporation may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification and to the advancement
of expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this Article VII with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.

                  Section 7.07   NATURE OF RIGHTS. The rights conferred upon
indemnitees in this Article VII shall be contract rights and such rights shall
continue as to an indemnitee who has ceased to be a director, officer or trustee
and shall inure to the benefit of the indemnitee's heirs, executors and
administrators. Any amendment, alteration or repeal of this Article VII that
adversely affects any right of an indemnitee or its successors shall be
prospective only and shall not limit or eliminate any such right with respect to
any proceeding involving any occurrence or alleged occurrence of any action or
omission to act that took place prior to such amendment or repeal.

                  Section 7.08   CONSTITUENT CORPORATIONS. For the purposes
of this Article VII, references to "the Corporation" include in addition to the
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise or as a member of any committee or similar body shall
stand in the same position under the provisions of this Article VII with respect
to the resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.

                  Section 7.09   EMPLOYEE BENEFIT PLANS. For the purposes of
this Article VII, references to "other enterprises" shall include employee
benefit plans; references to "fines" shall include any excise taxes assessed on
a person with respect to any employee benefit plan; and references to "serving
at the request of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or
involves services by, such director, officer, employee or agent with respect to
an employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article VII.



                                       15


                  Section 7.10   RELIANCE. Each director, each member of any
committee designated by the Board of Directors, and each officer of the
Corporation shall, in the performance of his or her duties, be fully protected
in relying in good faith upon the books of account or other records of the
Corporation and upon such information, opinions, reports or statements presented
to the Corporation by any of its officers or employees, or committees of the
Board of Directors so designated, or by any other person as to matters that such
director or committee member reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Corporation.

                  Section 7.11   SEVERABILITY. If any part of this Article VII
shall be found, in any action, suit or proceeding or appeal therefrom or in any
other circumstances or as to any particular officer, director, employee or agent
to be unenforceable, ineffective or invalid for any reason, the enforceability,
effect and validity of the remaining parts or of such parts in other
circumstances shall not be affected, except as otherwise required by applicable
law.

                                  ARTICLE VIII

                                  MISCELLANEOUS

                  Section 8.01   SEAL. The Board shall provide a corporate seal,
which shall be in the form of a circle and shall bear the name of the
Corporation and words and figures showing that the Corporation was incorporated
in the State of Delaware and showing the year of incorporation.

                  Section 8.02   WAIVER OF NOTICES. Whenever notice is required
to be given under any provision of these By-Laws, the Certificate of
Incorporation or by law, a written waiver, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when a person attends a meeting for the
express purpose of objecting at the beginning of the meeting, to the transaction
of any business because the meeting is not lawfully called or convened. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the stockholders, directors, or members of a committee of directors
need be specified in any written waiver of notice unless required by the
Certificate of Incorporation.

                  Section 8.03   LOANS AND GUARANTIES. The Corporation may
lend money to, or guarantee any obligation of, and otherwise assist any officer
or other employee of the Corporation or of its subsidiaries, including any
officer who is a director, whenever, in the judgment of the Board, such loan,
guaranty or assistance may reasonably be expected to benefit the Corporation.
The loan, guaranty, or other assistance may be with or without interest, and may
be unsecured or secured in such manner as the Board shall approve, including,
without limitation, a pledge of shares of stock of the Corporation.



                                       16


                  Section 8.04   GENDER. All personal pronouns used in these
By-Laws shall include the other genders, whether used in the masculine, feminine
or neuter gender, and the singular shall include the plural, and vice versa,
whenever and as often as may be appropriate.

                  Section 8.05   AMENDMENTS. These By-Laws, or any of them,
may be rescinded, altered, amended or repealed, and new By-Laws may be made (i)
by the Board, by vote of a majority of the number of directors then in office as
directors, acting at any meeting of the Board or (ii) by the stockholders, by
the vote of a majority of the outstanding shares of voting stock of the
Corporation, at any meeting of stockholders; provided, however, that Section
2.02 of these By-Laws can only be amended if that Section as amended would not
conflict with the Corporation's Certificate of Incorporation. Any By-Law made or
altered by the stockholders may be altered or repealed by the Board or may be
altered or repealed by the stockholders.



                                       17

EX-4.1

                                                                     EXHIBIT 4.1

================================================================================

                                CREDIT AGREEMENT

                                      among

                           DHM HOLDING COMPANY, INC.,

                            DOLE FOOD COMPANY, INC.,

                                 SOLVEST, LTD.,

                          VARIOUS LENDING INSTITUTIONS,

                        DEUTSCHE BANK AG NEW YORK BRANCH,
                            as Administrative Agent,

                            THE BANK OF NOVA SCOTIA,
                                       and
                         BANC OF AMERICA SECURITIES LLC,
                            as Co-Syndication Agents,

                                       and

                               FLEET NATIONAL BANK
                              and SOCIETE GENERALE,
                           as Co-Documentation Agents

                           Dated as of March 28, 2003

                        --------------------------------

                         DEUTSCHE BANK SECURITIES INC.,
                             THE BANK OF NOVA SCOTIA
                                       and
                         BANC OF AMERICA SECURITIES LLC,
                    as Joint Lead Arrangers and Book Runners

================================================================================



                                     Table of Contents



                                                                                             Page
                                                                                             ----
                                                                                          
SECTION 1.   Amount and Terms of Credit.................................................       1
   1.01    Commitments..................................................................       1
   1.01    Minimum Borrowing Amounts, etc...............................................       9
   1.02    Notice of Borrowing..........................................................       9
   1.03    Disbursement of Funds........................................................      10
   1.04    Notes........................................................................      11
   1.05    Conversions..................................................................      15
   1.06    Pro Rata Borrowings..........................................................      16
   1.07    Interest.....................................................................      16
   1.08    Interest Periods.............................................................      18
   1.09    Increased Costs; Illegality; etc.............................................      19
   1.10    Compensation.................................................................      22
   1.11    Change of Lending Office.....................................................      23
   1.12    Replacement of Lenders.......................................................      24
   1.13    Special Provisions Applicable to Lenders Upon the Occurrence of
           a Sharing Event..............................................................      26

SECTION 2.   32

SECTION 2A. Letters of Credit...........................................................      32
   2A.01   Letters of Credit............................................................      32
   2A.02   Minimum Stated Amount........................................................      34
   2A.03   Letter of Credit Requests....................................................      34
   2A.04   Letter of Credit Participations..............................................      35
   2A.05   Agreement to Repay Letter of Credit Drawings.................................      38
   2A.06   Increased Costs..............................................................      40

SECTION 2B. Bank Guaranties.............................................................      41
   2B.01   Bank Guaranties..............................................................      41
   2B.02   Minimum Face Amount..........................................................      43
   2B.03   Bank Guaranty Requests.......................................................      43
   2B.04   Bank Guaranty Participations.................................................      43
   2B.05   Agreement to Repay Bank Guaranty Payments....................................      47
   2B.06   Increased Costs..............................................................      48
   2B.07   Cash Collateralization.......................................................      49

SECTION 3. Fees; Commitments............................................................      49
   3.01    Fees.........................................................................      49
   3.02    Voluntary Termination or Reduction of Revolving Loan
           Commitments and Adjustments of Multicurrency
           Facility Revolving Loan Commitments..........................................      53
   3.03    Mandatory Reduction of Commitments...........................................      54


                                      -i-





                                                                                             Page
                                                                                             ----
                                                                                          
SECTION 4.   Prepayments; Repayments; Taxes.............................................      55
   4.01    Voluntary Prepayments........................................................      55
   4.02    Mandatory Repayments and Commitment Reductions...............................      57
   4.03    Method and Place of Payment..................................................      65
   4.04    Net Payments.................................................................      66

SECTION 5.   Conditions Precedent to Credit Events on the Initial Borrowing Date........      68
   5.01    Execution of Agreement; Notes................................................      68
   5.02    Officer's Certificate........................................................      68
   5.03    Opinions of Counsel..........................................................      68
   5.04    Company Documents; Proceedings...............................................      69
   5.05    Adverse Change, etc..........................................................      70
   5.06    Litigation...................................................................      70
   5.07    Approvals....................................................................      70
   5.08    Consummation of the Acquisition, etc.........................................      70
   5.09    Common Equity Financing; etc.................................................      71
   5.10    Amendments to Existing Senior Notes Documents, etc...........................      72
   5.11    Initial Refinancing..........................................................      72
   5.12    Aggregate Funds Needed to Effect Transaction.................................      73
   5.13    Outstanding Indebtedness and Preferred Equity................................      74
   5.14    Subsidiaries Guaranties; Intercompany Subordination Agreement;
           Capital Call Agreement.......................................................      74
   5.15    Pledge Agreements............................................................      75
   5.16    U.S. Security Agreement......................................................      76
   5.17    Foreign Security Agreements..................................................      77
   5.18    Mortgages; Title Insurance; Surveys; etc.....................................      78
   5.19    Employee Benefit Plans; Shareholders' Agreements;
           Management Agreements; Collective Bargaining Agreements;
           Existing Indebtedness Agreements; Tax Allocation Agreements..................      79
   5.20    Solvency Certificate; Solvency Opinion; Insurance Certificates; etc..........      80
   5.21    Financial Statements; Pro Forma Financial Statements; Projections............      81
   5.22    Payment of Fees..............................................................      81
   5.23    Consent Letter...............................................................      81

SECTION 6.   ...........................................................................      82
   6A.01 Limitation on Cash on Hand.....................................................      82
   6B.01 No Default; Representations and Warranties.....................................      82

SECTION 7.   Representations and Warranties.............................................      83
   7.01    Company Status...............................................................      83
   7.02    Company Power and Authority..................................................      83
   7.03    No Violation.................................................................      84
   7.04    Litigation...................................................................      84
   7.05    Use of Proceeds; Margin Regulations..........................................      84
   7.06    Governmental Approvals.......................................................      85


                                      -ii-





                                                                                            Page
                                                                                            ----
                                                                                         
   7.07    Investment Company Act.......................................................      85
   7.08    Public Utility Holding Company Act...........................................      85
   7.09    True and Complete Disclosure.................................................      86
   7.10    Financial Condition; Financial Statements....................................      86
   7.11    Security Interests...........................................................      87
   7.12    Compliance with ERISA........................................................      88
   7.13    Capitalization...............................................................      89
   7.14    Subsidiaries.................................................................      90
   7.15    Intellectual Property, etc...................................................      90
   7.16    Compliance with Statutes; Agreements, etc....................................      90
   7.17    Environmental Matters........................................................      90
   7.18    Properties...................................................................      91
   7.19    Labor Relations..............................................................      92
   7.20    Tax Returns and Payments.....................................................      92
   7.21    Scheduled Existing Indebtedness..............................................      92
   7.22    Insurance....................................................................      93
   7.23    Representations and Warranties in Other Documents............................      93
   7.24    Transaction..................................................................      93
   7.25    Special Purpose Corporations.................................................      93
   7.26    Subordination................................................................      94

SECTION 8.   Affirmative Covenants......................................................      94
   8.01    Information Covenants........................................................      94
   8.02    Books, Records and Inspections...............................................     100
   8.03    Insurance....................................................................     100
   8.04    Payment of Taxes.............................................................     101
   8.05    Existence; Franchises........................................................     101
   8.06    Compliance with Statutes; etc................................................     101
   8.07    Compliance with Environmental Laws...........................................     101
   8.08    ERISA........................................................................     102
   8.09    Good Repair..................................................................     104
   8.10    End of Fiscal Years; Fiscal Quarters.........................................     104
   8.11    Additional Security. Additional Guaranties; Actions with Respect
           to Non-Guarantor Subsidiaries; Further Assurances............................     104
   8.12    Foreign Subsidiaries Security................................................     108
   8.13    Use of Proceeds..............................................................     109
   8.14    Ownership of Subsidiaries....................................................     110
   8.15    Permitted Acquisitions.......................................................     110
   8.16    Maintenance of Company Separateness..........................................     112
   8.17    Foreign Exchange Protection..................................................     112
   8.18    Performance of Obligations...................................................     113
   8.19    Conduct of Business..........................................................     113
   8.20    Contributions; Payments......................................................     114
   8.21    Post-Closing Refinancing.....................................................     114
   8.22    Asset Sale Requirements......................................................     115
   8.23    Margin Stock.................................................................     115
   8.24    Special Provisions Regarding Special Colombian Put Notes.....................     116


                                     -iii-





                                                                                            Page
                                                                                            ----
                                                                                         
SECTION 9.   Negative Covenants.........................................................     116
   9.01    Changes in Business; etc.....................................................     116
   9.02    Consolidation; Merger; Sale or Purchase of Assets; etc.......................     119
   9.03    Liens........................................................................     123
   9.04    Indebtedness.................................................................     126
   9.05    Advances; Investments; Loans.................................................     129
   9.06    Restricted Payments; etc.....................................................     134
   9.07    Transactions with Affiliates.................................................     135
   9.08    Consolidated Interest Coverage Ratio.........................................     136
   9.09    Consolidated Fixed Charge Coverage Ratio.....................................     136
   9.10    Leverage Ratio...............................................................     137
   9.11    Minimum Consolidated EBITDA..................................................     138
   9.12    Capital Expenditures.........................................................     139
   9.13    Bank Debt Leverage Ratio.....................................................     140
   9.14    Limitation on Voluntary Payments and Modifications of
           Indebtedness; Modifications of Certificate of Incorporation, By-
           Laws and Certain Other Agreements; Issuances of Capital Stock;
           etc..........................................................................     141
   9.15    Limitation on Issuance of Equity Interests...................................     142
   9.16    Limitation on Certain Restrictions on Subsidiaries...........................     143
   9.17    Limitation on the Creation of Subsidiaries and Joint Ventures................     144
   9.18    Special Restrictions Relating to Principal Property..........................     145

SECTION 10.  Events of Default..........................................................     145
   10.01   Payments.....................................................................     145
   10.02   Representations, etc.........................................................     145
   10.03   Covenants....................................................................     145
   10.04   Default Under Other Agreements...............................................     146
   10.05   Bankruptcy, etc..............................................................     146
   10.06   ERISA........................................................................     146
   10.07   Security Documents...........................................................     147
   10.08   Guaranties...................................................................     147
   10.09   Judgments....................................................................     148
   10.10   Ownership....................................................................     148
   10.11   Capital Call Agreement.......................................................     148
   10.12   Denial of Liability..........................................................     148
   10.13   Governmental Action..........................................................     149
   10.14   Special Defaults Relating to Bermuda Entities................................     149

SECTION 11.  Definitions................................................................     150

SECTION 12.  The Agents.................................................................     207
   12.01   Appointment..................................................................     207
   12.02   Nature of Duties.............................................................     208
   12.03   Certain Rights of the Agents.................................................     209
   12.04   Reliance by Agents...........................................................     209
   12.05   Notice of Default, etc.......................................................     209


                                      -iv-





                                                                                            Page
                                                                                            ----
                                                                                         
   12.06   Nonreliance on Agents and Other Lenders......................................     210
   12.07   Indemnification..............................................................     210
   12.08   Agents in their Individual Capacities........................................     211
   12.09   Holders......................................................................     211
   12.10   Resignation of the Agents....................................................     211
   12.11   Collateral Matters...........................................................     212
   12.12   Delivery of Information......................................................     213
   12.13   Special Appointment of Collateral Agent......................................     213
   12.14   Special Provisions Relating to Canadian Security Documents...................     214

SECTION 13.  Miscellaneous..............................................................     215
   13.01   Payment of Expenses, etc.....................................................     215
   13.02   Right of Setoff..............................................................     216
   13.03   Notices......................................................................     217
   13.04   Benefit of Agreement.........................................................     218
   13.05   No Waiver; Remedies Cumulative...............................................     220
   13.06   Payments Pro Rata............................................................     221
   13.07   Calculations; Computations...................................................     221
   13.08   Governing Law; Submission to Jurisdiction; Venue.............................     222
   13.09   Counterparts.................................................................     223
   13.10   Effectiveness................................................................     223
   13.11   Headings Descriptive.........................................................     223
   13.12   Amendment or Waiver; etc.....................................................     223
   13.13   Survival.....................................................................     226
   13.14   Domicile of Loans and Commitments............................................     226
   13.15   Confidentiality..............................................................     226
   13.16   Waiver of Jury Trial.........................................................     227
   13.17   Register.....................................................................     227
   13.18   English Language.............................................................     228
   13.19   Post Closing Actions.........................................................     228
   13.20   Special Provisions Regarding Pledges of Equity Interests in, and
           Promissory Notes Owed by, Persons Not Organized in Qualified
           Jurisdictions................................................................     229
   13.21   Powers of Attorney; etc......................................................     230
   13.22   Waiver of Sovereign Immunity.................................................     230
   13.23   Judgment Currency............................................................     231
   13.24   Special Acknowledgments......................................................     231

SECTION 14.  Holdings Guaranty..........................................................     232
   14.01   The Guaranty.................................................................     232
   14.02   Bankruptcy...................................................................     232
   14.03   Nature of Liability..........................................................     232
   14.04   Independent Obligation.......................................................     233
   14.05   Authorization................................................................     233
   14.06   Reliance.....................................................................     234
   14.07   Subordination................................................................     234
   14.08   Waiver.......................................................................     235


                                      -v-





                                                                                            Page
                                                                                            ----
                                                                                         
   14.09   Payments.....................................................................     236

SECTION 15.  U.S. Borrower's Guaranty...................................................     237
   15.01   The U.S. Borrower's Guaranty.................................................     237
   15.02   Bankruptcy...................................................................     237
   15.03   Nature of Liability..........................................................     237
   15.04   Independent Obligation.......................................................     238
   15.05   Authorization................................................................     238
   15.06   Reliance.....................................................................     239
   15.07   Subordination................................................................     239
   15.08   Waiver.......................................................................     240
   15.09   Payments.....................................................................     242


              
SCHEDULE I       List of Lenders and Commitments
SCHEDULE II      Lender Addresses
SCHEDULE III     Real Properties
SCHEDULE IV      Scheduled 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; Existing Bank Guaranties
SCHEDULE XII     Group Structure Chart
SCHEDULE XIII    Certain Security Documents, etc.
SCHEDULE XIV     Post-Closing Matters
SCHEDULE XV      Non-Guarantor Subsidiaries; Excluded Foreign Subsidiaries
SCHEDULE XVI     Transactions with Affiliates
SCHEDULE XVII    Principal Properties
SCHEDULE XVIII   Tax Matters
SCHEDULE XIX     Governmental Approvals
SCHEDULE XX      Initial Qualified Jurisdictions



                 
EXHIBIT A-1  -      Form of Notice of Borrowing
EXHIBIT A-2  -      Notice of Conversion/Continuation
EXHIBIT B-1  -      Form of Tranche A Term Note
EXHIBIT B-2  -      Form of Tranche B Term Note
EXHIBIT B-3  -      Form of Multicurrency Facility Revolving Note
EXHIBIT B-4  -      Form of U.S. Borrower Dollar Facility Revolving Note
EXHIBIT B-5  -      Form of Bermuda Borrower Dollar Facility Revolving Note
EXHIBIT B-6  -      Form of Multicurrency Facility Swingline Note
EXHIBIT B-7  -      Form of U.S. Borrower Dollar Facility Swingline Note
EXHIBIT B-8  -      Form of Bermuda Borrower Dollar Facility Swingline Note
EXHIBIT C-1  -      Form of Letter of Credit Request



                                      -vi-



                 
EXHIBIT C-2  -      Form of Bank Guaranty Request
EXHIBIT D    -      Form of Section 4.04(b)(ii) Certificate
EXHIBIT E-1  -      Form of Opinion of Paul, Hastings, Janofsky & Walker LLP
EXHIBIT E-2  -      Form of Opinion of Appleby, Spurling & Kempe
EXHIBIT F    -      Form of Officers' Certificate
EXHIBIT G-1  -      Form of U.S. Subsidiaries Guaranty
EXHIBIT G-2  -      Form of Foreign Subsidiaries Guaranty
EXHIBIT H    -      Form of U.S. Pledge Agreement
EXHIBIT I    -      Form of U.S. Security Agreement
EXHIBIT J-1  -      Form of Solvency Certificate
EXHIBIT J-2  -      Form of Solvency Opinion
EXHIBIT K    -      Form of Assignment and Assumption Agreement
EXHIBIT L    -      Form of Intercompany Note
EXHIBIT M    -      Form of Shareholder Subordinated Note
EXHIBIT N    -      Form of Form of Special Colombian Put Notes
EXHIBIT O    -      Form of Consent Letter
EXHIBIT P    -      Form of Intercompany Subordination Agreement
EXHIBIT Q    -      Form of Capital Call Agreement



                                     -vii-



                  CREDIT AGREEMENT, dated as of March 28, 2003, among DHM
HOLDING COMPANY, INC., a Delaware corporation ("Holdings"), DOLE FOOD COMPANY,
INC., a Delaware corporation (the "U.S. Borrower"), SOLVEST LTD., a corporation
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 Administrative Agent (in such capacity, the
"Administrative Agent"), THE BANK OF NOVA SCOTIA and BANC OF AMERICA SECURITIES
LLC, as Co-Syndication Agents (in such capacity, each, a "Co-Syndication Agent"
and, collectively, the "Co-Syndication Agents"), FLEET NATIONAL BANK and SOCIETE
GENERALE, as Co-Documentation Agents (in such capacity, each, a
"Co-Documentation Agent" and, collectively, the "Co-Documentation Agents") and
DEUTSCHE BANK SECURITIES INC., THE BANK OF NOVA SCOTIA AND BANC OF AMERICA
SECURITIES LLC, as Joint Lead Arrangers and Book Runners (in such capacity, each
a "Joint Lead Arranger" and, collectively, the "Joint Lead Arrangers"). 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, subject to and upon the terms and conditions herein
set forth, the Lenders are willing to make available to the Borrowers on a
several (but not joint) basis the credit facilities provided for herein;

                  NOW, THEREFORE, IT IS AGREED:

                  SECTION 1. Amount and Terms of Credit.

                  1.01 Commitments.

                  (a)      Tranche A Term Loans. Subject to and upon the terms
and conditions set forth herein, each Lender with a Tranche A Term Loan
Commitment severally agrees to make a term loan (each, a "Tranche A Term Loan"
and, collectively, the "Tranche A Term Loans") to the U.S. Borrower, which
Tranche A Term Loans:

                  (i)      shall be incurred by the U.S. Borrower pursuant to a
         single drawing on the Initial Borrowing Date for the purposes described
         in Section 7.05(a);

                  (ii)     shall be denominated in Dollars;

                  (iii)    except as hereafter provided, shall, at the option of
         the U.S. Borrower, be incurred and maintained as, and/or converted
         into, Base Rate Loans or Eurodollar Loans, provided that (A) except as
         otherwise specifically provided in Section 1.10(b), all Tranche A Term
         Loans made as part of the same Borrowing shall at all times consist of
         Tranche A Term Loans of the same Type and (B) unless the Administrative
         Agent has determined that the Syndication Date has occurred (at which
         time this clause (B) shall no longer be applicable), no more than three
         Borrowings of Tranche A Term Loans to be maintained as Eurodollar Loans
         may be incurred prior to the 90th day after the Initial Borrowing Date
         (or, if later, the last day of the Interest Period applicable to the
         third



         Borrowing of Eurodollar Loans referred to below), each of which
         Borrowings of Eurodollar Loans may only have an Interest Period of one
         month, 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 Initial Borrowing Date, the second of which Borrowings may only be
         made on the last day of the Interest Period of the first such Borrowing
         and the third of which Borrowings may only be made on the last day of
         the Interest Period of the second such Borrowing; and

                  (iv) shall be made by each Lender in that initial aggregate
         principal amount as is equal to the Tranche A Term Loan Commitment of
         such Lender on the Initial Borrowing Date (before giving effect to the
         termination thereof on such date pursuant to Section 3.03(b)).

Once repaid, Tranche A Term Loans incurred hereunder may not be reborrowed.

                  (b)      Tranche B Term Loans. Subject to and upon the terms
and conditions set forth herein, each Lender with a Tranche B Term Loan
Commitment severally agrees to make a term loan (each, a "Tranche B Term Loan"
and, collectively, the "Tranche B Term Loans") to the Bermuda Borrower, which
Tranche B Term Loans:

                  (i)      shall be incurred by the Bermuda Borrower pursuant to
         a single drawing on the Initial Borrowing Date for the purposes
         described in Section 7.05(a);

                  (ii)     shall be denominated in Dollars;

                  (iii)    except as hereafter provided, shall, at the option of
         the Bermuda Borrower, be incurred and maintained as, and/or converted
         into, Base Rate Loans or Eurodollar Loans, provided that (A) except as
         otherwise specifically provided in Section 1.10(b), all Tranche B Term
         Loans made as part of the same Borrowing shall at all times consist of
         Tranche B Term Loans of the same Type and (B) unless the Administrative
         Agent has determined that the Syndication Date has occurred (at which
         time this clause (B) shall no longer be applicable), no more than three
         Borrowings of Tranche B Term Loans to be maintained as Eurodollar Loans
         may be incurred prior to the 90th day after the Initial Borrowing Date
         (or, if later, the last day of the Interest Period applicable to the
         third Borrowing of Eurodollar Loans referred to below), each of which
         Borrowings of Eurodollar Loans may only have an Interest Period of one
         month, and the first of which Borrowings may only be made on the same
         date as the initial Borrowing of Tranche A Term Loans that are
         maintained as Eurodollar Loans, the second of which Borrowings may only
         be made on the last day of the Interest Period of the first such
         Borrowing and the third of which Borrowings may only be made on the
         last day of the Interest Period of the second such Borrowing; and

                  (iv)     shall be made by each Lender in that initial
         aggregate principal amount as is equal to the Tranche B Term Loan
         Commitment of such Lender on the Initial Borrowing Date (before giving
         effect to the termination thereof on such date pursuant to Section
         3.03(c)).

Once repaid, Tranche B Term Loans incurred hereunder may not be reborrowed.

                                      -2-



                  (c)      Multicurrency Facility Revolving Loans. Subject to
and upon the terms and conditions set forth herein, each Multicurrency Facility
RL Lender severally agrees to make, at any time and from time to time on or
after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date,
a revolving loan or revolving loans to the Bermuda Borrower (each, a
"Multicurrency Facility Revolving Loan" and, collectively, the "Multicurrency
Facility Revolving Loans"), which Multicurrency Facility Revolving Loans:

                  (i)      shall (subject to Section 1.14) be made and
         maintained in the respective Available Currency elected by the Bermuda
         Borrower;

                  (ii)     except as hereafter provided, 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, Eurodollar Loans or
         Euro Denominated Revolving Loans, provided that (A) except as otherwise
         specifically provided in Section 1.10(b), all Multicurrency Facility
         Revolving Loans made as part of the same Borrowing shall at all times
         consist of Multicurrency Facility Revolving Loans of the same Type, and
         (B) unless the Administrative Agent has determined that the Syndication
         Date has occurred (at which time this clause (B) shall no longer be
         applicable), (1) no more than three Borrowings of Multicurrency
         Facility Revolving Loans to be maintained as Eurodollar Loans may be
         incurred prior to the 90th day after the Initial Borrowing Date (or, if
         later, the last day of the Interest Period applicable to the third
         Borrowing of Eurodollar Loans referred to below), each of which
         Borrowings of Eurodollar Loans may only have an Interest Period of one
         month, and the first of which Borrowings may only be made on the same
         date as the initial Borrowing of Tranche A Term Loans that are
         maintained as Eurodollar Loans, the second of which Borrowings may only
         be made on the last day of the Interest Period of the first such
         Borrowing and the third of which Borrowings may only be made on the
         last day of the Interest Period of the second such Borrowing and (2)
         all Borrowings of Euro Denominated Revolving Loans shall have Interest
         Periods of one week;

                  (iii)    may be repaid and reborrowed in accordance with the
         provisions hereof;

                  (iv)     shall not be made (and shall not be required to be
         made) by any Multicurrency Facility RL Lender in any instance where the
         incurrence thereof (after giving effect to the use of the proceeds
         thereof on the date of the incurrence thereof to repay any amounts
         theretofore outstanding pursuant to this Agreement) would cause the
         Individual Multicurrency Facility RL Exposure of such Multicurrency
         Facility RL Lender to exceed the amount of its Multicurrency Facility
         Revolving Loan Commitment at such time; and

                  (v)      shall not be made (and shall not be required to be
         made) by any Multicurrency Facility RL Lender if the making of same
         would cause the Aggregate Multicurrency Facility RL Exposure (after
         giving effect to the use of the proceeds thereof on the date of the
         incurrence thereof to repay any amounts theretofore outstanding
         pursuant to this Agreement) to exceed the Total Multicurrency Facility
         Revolving Loan Commitment as then in effect.

                                      -3-



                  (d)      Dollar Facility Revolving Loans. Subject to and upon
the terms and conditions set forth herein, each Dollar Facility RL Lender
severally agrees to make, at any time and from time to time on or after the
Initial Borrowing Date and prior to the Revolving Loan Maturity Date, (I) a
revolving loan or revolving loans to the U.S. Borrower (each, a "U.S. Borrower
Dollar Facility Revolving Loan" and, collectively, the "U.S. Borrower Dollar
Facility Revolving Loans") and (II) a revolving loan or revolving loans to the
Bermuda Borrower (each, a "Bermuda Borrower Dollar Facility Revolving Loan" and,
collectively, the "Bermuda Borrower Dollar Facility Revolving Loans" and with
the revolving loans made to the U.S. Borrower or the Bermuda Borrower pursuant
to this Section 1.01(d) being each called a "Dollar Facility Revolving Loan"
and, collectively, the "Dollar Facility Revolving Loans" and, together with the
Multicurrency Facility Revolving Loans, the "Revolving Loans"), which Dollar
Facility Revolving Loans:

                  (i)      shall be made and maintained in Dollars;

                  (ii)     except as hereafter provided, shall, at the option of
         the U.S. Borrower or 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 (A) except as otherwise specifically
         provided in Section 1.10(b), all Dollar Facility Revolving Loans made
         as part of the same Borrowing shall at all times consist of Dollar
         Facility Revolving Loans of the same Type, and (B) unless the
         Administrative Agent has determined that the Syndication Date has
         occurred (at which time this clause (B) shall no longer be applicable),
         no more than three Borrowings of Dollar Facility Revolving Loans to be
         maintained as Eurodollar Loans may be incurred prior to the 90th day
         after the Initial Borrowing Date (or, if later, the last day of the
         Interest Period applicable to the third Borrowing of Eurodollar Loans
         referred to below), each of which Borrowings of Eurodollar Loans may
         only have an Interest Period of one month, and the first of which
         Borrowings may only be made on the same date as the initial Borrowing
         of Tranche A Term Loans that are maintained as Eurodollar Loans, the
         second of which Borrowings may only be made on the last day of the
         Interest Period of the first such Borrowing and the third of which
         Borrowings may only be made on the last day of the Interest Period of
         the second such Borrowing;

                  (iii)    may be repaid and reborrowed in accordance with the
         provisions hereof;

                  (iv)     shall not be made (and shall not be required to be
         made) by any Dollar Facility RL Lender in any instance where the
         incurrence thereof (after giving effect to the use of the proceeds
         thereof on the date of the incurrence thereof to repay any amounts
         theretofore outstanding pursuant to this Agreement) would cause the
         Individual Dollar Facility RL Exposure of such Dollar Facility RL
         Lender to exceed the amount of its Dollar Facility Revolving Loan
         Commitment at such time;

                  (v)      shall not be made (and shall not be required to be
         made) by any Dollar Facility RL Lender if the making of same would
         cause the Aggregate Dollar Facility RL Exposure (after giving effect to
         the use of the proceeds thereof on the date of the incurrence thereof
         to repay any amounts theretofore outstanding pursuant to this
         Agreement) to exceed the Total Dollar Facility Revolving Loan
         Commitment as then in effect; and

                                      -4-



                  (vi)     in the case of any Borrowing of Bermuda Borrower
         Dollar Facility Revolving Loans, shall not be made (and shall not be
         required to be made) by any Dollar Facility RL Lender if the making of
         same would cause the Aggregate Bermuda Borrower Dollar Facility RL
         Exposure (after giving effect to the use of the proceeds thereof on the
         date of the incurrence thereof to repay any amounts theretofore
         outstanding pursuant to this Agreement) to exceed $50,000,000.

The Bermuda Borrower shall have no liability with respect to any U.S. Borrower
Dollar Facility Revolving Loans which may be extended to, and which shall
constitute obligations of, the U.S. Borrower.

                  (e)      Multicurrency Facility Swingline Loans. Subject to
and upon the terms and conditions set forth herein, the Swingline Lender agrees
to make, at any time and from time to time on or after the Initial Borrowing
Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans
to the Bermuda Borrower (each, a "Multicurrency Facility Swingline Loan" and,
collectively, the "Multicurrency Facility Swingline Loans"), which Multicurrency
Facility Swingline Loans:

                  (i)      shall (subject to Section 1.14) be made and
         maintained in the respective Available Currency elected by the Bermuda
         Borrower;

                  (ii)     shall be made and maintained as Base Rate Loans or
         Euro Denominated Swingline Loans;

                  (iii)    may be repaid and reborrowed in accordance with the
         provisions hereof;

                  (iv)     shall not be made (and shall not be required to be
         made) if the making of same would cause the Aggregate Multicurrency
         Facility RL Exposure (after giving effect to the use of the proceeds
         thereof on the date of the incurrence thereof to repay any amounts
         theretofore outstanding pursuant to this Agreement) to exceed the Total
         Multicurrency Facility Revolving Loan Commitment at such time; and

                  (v)      shall not exceed in aggregate principal amount at any
         time outstanding (taking the Dollar Equivalents of all amounts in
         Euros), when added to the aggregate principal amount of Dollar Facility
         Swingline Loans then outstanding, the Maximum Swingline Amount.

Notwithstanding anything to the contrary contained in this Section 1.01(e), (x)
the Swingline Lender shall not be obligated to make any Multicurrency Facility
Swingline Loans at a time when a Lender Default exists with respect to any
Multicurrency Facility RL Lender unless the Swingline Lender has entered into
arrangements satisfactory to it to eliminate the Swingline Lender's risk with
respect to the Defaulting Lender's or Defaulting Lenders' refunding obligations
(through the requirement that Mandatory Multicurrency Facility RL Borrowings be
made from time to time) in respect of such Multicurrency Facility Swingline
Loans, including by cash collateralizing (in the relevant currency or
currencies) such Defaulting Lender's or Defaulting Lenders' Multicurrency
Facility RL Percentages of the outstanding Multicurrency Facility Swingline
Loans and (y) the Swingline Lender shall not make any Multicurrency Facility
Swingline Loan after it has received written notice from any Credit Agreement
Party, the

                                      -5-



Required Lenders stating that a Default or an Event of Default exists and is
continuing until such time as the Swingline Lender shall have received written
notice (A) of rescission of all such notices from the party or parties
originally delivering such notice or notices or (B) of the waiver of such
Default or Event of Default by the Required Lenders.

                  (f)      Dollar Facility Swingline Loans. Subject to and upon
the terms and conditions set forth herein, the Swingline Lender agrees to make,
at any time and from time to time on or after the Initial Borrowing Date and
prior to the Swingline Expiry Date, (I) a revolving loan or revolving loans to
the U.S. Borrower (each, a "U.S. Borrower Dollar Facility Swingline Loan" and,
collectively, the "U.S. Borrower Dollar Facility Swingline Loans") and (II) a
revolving loan or revolving loans to the Bermuda Borrower (each, a "Bermuda
Borrower Dollar Facility Swingline Loan" and, collectively, the "Bermuda
Borrower Dollar Facility Swingline Loans" and with the revolving loans made to
the U.S. Borrower or the Bermuda Borrower pursuant to this Section 1.01(f) being
each called a "Dollar Facility Swingline Loan" and, collectively, the "Dollar
Facility Swingline Loans" and, together with Multicurrency Facility Swingline
Loans, the "Swingline Loans"), which Dollar Facility Swingline Loans:

                  (i)      shall be made and maintained in Dollars;

                  (ii)     shall be made and maintained as Base Rate Loans;

                  (iii)    may be repaid and reborrowed in accordance with the
         provisions hereof;

                  (iv)     shall not be made (and shall not be required to be
         made) if the making of same would cause the Aggregate Dollar Facility
         RL Exposure (after giving effect to the use of the proceeds thereof on
         the date of the incurrence thereof to repay any amounts theretofore
         outstanding pursuant to this Agreement) to exceed the Total Dollar
         Facility Revolving Loan Commitment as then in effect;

                  (v)      shall not exceed in aggregate principal amount at any
         time outstanding, when added to the aggregate principal amount of
         Multicurrency Facility Swingline Loans then outstanding (taking the
         Dollar Equivalents of all amounts in Euros), the Maximum Swingline
         Amount; and

                  (vi)     in the case of any Borrowing of Bermuda Borrower
         Dollar Facility Swingline Loans, shall not be made (and shall not be
         required to be made) if the making of same would cause the Aggregate
         Bermuda Borrower Dollar Facility RL Exposure (after giving effect to
         the use of the proceeds thereof on the date of the incurrence thereof
         to repay any amounts theretofore outstanding pursuant to this
         Agreement) to exceed $50,000,000.

Notwithstanding anything to the contrary contained in this Section 1.01(f), (x)
the Swingline Lender shall not be obligated to make any Dollar Facility
Swingline Loans at a time when a Lender Default exists with respect to any
Dollar Facility RL Lender unless the Swingline Lender has entered into
arrangements satisfactory to it to eliminate the Swingline Lender's risk with
respect to the Defaulting Lender's or Defaulting Lenders' refunding obligations
(through the requirement that Mandatory Dollar Facility RL Borrowings be made
from time to time) in respect of such Dollar Facility Swingline Loans, including
by cash collateralizing such

                                      -6-



Defaulting Lender's or Defaulting Lenders' Dollar Facility RL Percentages of the
outstanding Dollar Facility Swingline Loans and (y) the Swingline Lender shall
not make any Dollar Facility Swingline Loan after it has received written notice
from any Credit Agreement Party, the Required Lenders stating that a Default or
an Event of Default exists and is continuing until such time as the Swingline
Lender shall have received written notice (A) of rescission of all such notices
from the party or parties originally delivering such notice or notices or (B) of
the waiver of such Default or Event of Default by the Required Lenders. The
Bermuda Borrower shall have no liability with respect to any U.S. Borrower
Dollar Facility Swingline Loans which may be extended to, and shall constitute
obligations of, the U.S. Borrower.

                  (g)      Refunding of Multicurrency Facility Swingline Loans.
On any Business Day, the Swingline Lender may, in its sole discretion, give
notice to the Multicurrency Facility RL Lenders that the outstanding
Multicurrency Facility Swingline Loans in a given Available Currency shall be
funded with a Borrowing of Multicurrency Facility Revolving Loans in such
Available Currency (provided that (x) such notice shall be deemed to have been
automatically given upon the occurrence of a Default or an Event of Default
under Section 10.05 or upon the exercise of any of the remedies provided in the
last paragraph of Section 10 and (y) if a Sharing Event shall have occurred, all
such Multicurrency Facility Swingline Loans shall be denominated in Dollars in
accordance with the provisions of Section 1.14, and refunded through a Mandatory
Multicurrency Facility RL Borrowing denominated in Dollars as provided below),
in which case a Borrowing of Multicurrency Facility Revolving Loans denominated
in the respective Available Currency (subject to the provisions of clause (y) of
the immediately preceding parenthetical sentence) (each such Borrowing, a
"Mandatory Multicurrency Facility RL Borrowing") shall be made on the third
succeeding Business Day by all Multicurrency Facility RL Lenders pro rata based
on each such Multicurrency Facility RL Lender's Multicurrency Facility RL
Percentage and the proceeds thereof shall be applied directly to the Swingline
Lender to repay the Swingline Lender for such outstanding Multicurrency Facility
Swingline Loans. Each Multicurrency Facility RL Lender hereby irrevocably agrees
to make Multicurrency Facility Revolving Loans in the relevant Available
Currency upon three Business Days' notice pursuant to each Mandatory
Multicurrency Facility RL Borrowing in the amount and in the manner specified in
the preceding sentence and on the date specified in writing by the Swingline
Lender notwithstanding (i) that the amount of the Mandatory Multicurrency
Facility RL Borrowing may not comply with the minimum amount for Borrowings
otherwise required hereunder, (ii) whether any conditions specified in Sections
6A and 6B are then satisfied, (iii) whether a Default or an Event of Default
then exists, (iv) the date of such Mandatory Multicurrency Facility RL
Borrowing, (v) the amount of the Total Multicurrency Facility Revolving Loan
Commitment at such time and (vi) the amount of the Multicurrency Facility
Revolving Loan Commitment of such Multicurrency Facility RL Lender at such time.
In the event that any Mandatory Multicurrency Facility RL Borrowing cannot for
any reason be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under any
bankruptcy, reorganization, dissolution, insolvency, receivership,
administration or liquidation or similar law with respect to either Borrower),
then each Multicurrency Facility RL Lender hereby agrees that it shall forthwith
purchase (as of the date the Mandatory Multicurrency Facility RL Borrowing would
otherwise have occurred, but adjusted for any payments received from either
Borrower on or after such date and prior to such purchase) from the Swingline
Lender such participations in such outstanding Multicurrency Facility Swingline
Loans as shall be necessary to cause such Multicurrency Facility RL Lenders to
share in such Multicurrency Facility Swingline Loans

                                      -7-



ratably based upon their respective Multicurrency Facility RL Percentages,
provided that (x) all interest payable on the Multicurrency Facility Swingline
Loans shall be for the account of the Swingline Lender until the date as of
which the respective participation is required to be purchased and, to the
extent attributable to the purchased participation, shall be payable to the
participant from and after such date and (y) at the time any purchase of
participations pursuant to this sentence is actually made, the purchasing
Multicurrency Facility RL Lender shall be required to pay the Swingline Lender
interest on the principal amount of the participation purchased for each day
from and including the day upon which the Mandatory Multicurrency Facility RL
Borrowing would otherwise have occurred to but excluding the date of payment for
such participation, at the rate otherwise applicable to Multicurrency Facility
Revolving Loans made in the relevant Available Currency. Notwithstanding
anything to the contrary contained above in this Section 1.01(g), upon the
occurrence of a Sharing Event, all outstanding Multicurrency Facility Swingline
Loans shall, as provided in Section 1.14, be automatically converted into U.S.
Dollar denominated Multicurrency Facility Swingline Loans and, to the extent the
respective Mandatory Multicurrency Facility RL Borrowing has not already
occurred in respect of such Multicurrency Facility Swingline Loans, a Mandatory
Multicurrency Facility RL Borrowing shall be effected with respect thereto in
accordance with the provisions of this Section 1.01(g).

                  (h)      Refunding of Dollar Facility Swingline Loans. On any
Business Day, the Swingline Lender may, in its sole discretion, give notice to
the Dollar Facility RL Lenders that the outstanding U.S. Borrower Dollar
Facility Swingline Loans or Bermuda Borrower Dollar Facility Swingline Loans
shall be funded with a Borrowing of U.S. Borrower Dollar Facility Revolving
Loans or Bermuda Borrower Dollar Facility Revolving Loans, as the case may be,
in Dollars (provided that such notice shall be deemed to have been automatically
given upon the occurrence of a Default or an Event of Default under Section
10.05 or upon the exercise of any of the remedies provided in the last paragraph
of Section 10), in which case a Borrowing of U.S. Borrower Dollar Facility
Revolving Loans or Bermuda Borrower Dollar Facility Revolving Loans, as the case
may be (each such Borrowing, a "Mandatory Dollar Facility RL Borrowing") shall
be made on the third succeeding Business Day by all Dollar Facility RL Lenders
pro rata based on each such Dollar Facility RL Lender's Dollar Facility RL
Percentage and the proceeds thereof shall be applied directly to the Swingline
Lender to repay the Swingline Lender for such outstanding Dollar Facility
Swingline Loans. Each Dollar Facility RL Lender hereby irrevocably agrees to
make U.S. Borrower Dollar Facility Revolving Loans (in the case of a refunding
of U.S. Borrower Dollar Facility Swingline Loans) and Bermuda Borrower Dollar
Facility Revolving Loans (in the case of a refunding of Bermuda Borrower Dollar
Facility Swingline Loans) upon one Business Day's notice pursuant to each
Mandatory Dollar Facility RL Borrowing in the amount and in the manner specified
in the preceding sentence and on the date specified in writing by the Swingline
Lender notwithstanding (i) that the amount of the Mandatory Dollar Facility RL
Borrowing may not comply with the minimum amount for Borrowings otherwise
required hereunder, (ii) whether any conditions specified in Sections 6A and 6B
are then satisfied, (iii) whether a Default or an Event of Default then exists,
(iv) the date of such Mandatory Dollar Facility RL Borrowing, (v) the amount of
the Total Dollar Facility Revolving Loan Commitment at such time and (vi) the
amount of the Dollar Facility Revolving Loan Commitment of such Dollar Facility
RL Lender at such time. In the event that any Mandatory Dollar Facility RL
Borrowing cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a proceeding
under any

                                      -8-



bankruptcy, reorganization, dissolution, insolvency, receivership,
administration or liquidation or similar law with respect to either Borrower),
then each Dollar Facility RL Lender hereby agrees that it shall forthwith
purchase (as of the date the Mandatory Dollar Facility RL Borrowing would
otherwise have occurred, but adjusted for any payments received from either
Borrower on or after such date and prior to such purchase) from the Swingline
Lender such participations in such outstanding Dollar Facility Swingline Loans
as shall be necessary to cause such Dollar Facility RL Lenders to share in such
Dollar Facility Swingline Loans ratably based upon their respective Dollar
Facility RL Percentages, provided that (x) all interest payable on the Dollar
Facility Swingline Loans shall be for the account of the Swingline Lender until
the date as of which the respective participation is required to be purchased
and, to the extent attributable to the purchased participation, shall be payable
to the participant from and after such date and (y) at the time any purchase of
participations pursuant to this sentence is actually made, the purchasing Dollar
Facility RL Lender shall be required to pay the Swingline Lender interest on the
principal amount of the participation purchased for each day from and including
the day upon which the Mandatory Dollar Facility RL Borrowing would otherwise
have occurred to but excluding the date of payment for such participation, at
the overnight Federal Funds Rate for the first three days and at the rate
otherwise applicable to Dollar Facility Revolving Loans maintained as Base Rate
Loans hereunder for each day thereafter.

                  1.01 Minimum Borrowing Amounts, etc. The aggregate principal
amount of each Borrowing of Loans shall not be less than the Minimum Borrowing
Amount applicable to Borrowings of the respective Type and Tranche of Loans to
be made or maintained pursuant to the respective Borrowing, provided that
Mandatory Multicurrency Facility RL Borrowings and Mandatory Dollar Facility RL
Borrowings shall be made in the amounts required by Section 1.01(g) or (h), as
applicable. More than one Borrowing may be incurred on any day, but at no time
shall there be outstanding more than 30 Borrowings of Euro Rate Loans.

                  1.02 Notice of Borrowing. (a) Whenever a Borrower desires to
make a Borrowing of Loans hereunder (excluding Borrowings of Swingline Loans and
Mandatory Borrowings), 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 Euro Rate 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
(stated in the relevant currency), (ii) the date of such Borrowing (which shall
be a Business Day), (iii) whether the respective Borrowing shall consist of
Tranche A Term Loans, Tranche B Term Loans, Multicurrency Facility Revolving
Loans, U.S. Borrower Dollar Facility Revolving Loans or Bermuda Borrower Dollar
Facility Revolving Loans, (iv) in the case of Dollar Denominated Loans, whether
the Dollar Denominated Loans being made pursuant to such Borrowing are to be
initially maintained as Base Rate Loans or Eurodollar Loans and (v) in the case
of Euro Rate Loans, the initial Interest Period to be applicable thereto. The
Administrative Agent shall promptly give each Lender which is required to make
Loans of the Tranche specified in the

                                      -9-



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.

                  (b)      (i) Whenever either Borrower desires to make a
Borrowing of Swingline Loans hereunder, an Authorized Officer of such Borrower
shall give the Swingline Lender, (i) not later than 1:00 P.M. (New York time) on
the date that a Dollar Denominated Swingline Loan is to be made and (ii) not
later than 1:00 P.M. (New York time) on the Business Day prior to the date that
a Euro Denominated Swingline Loan is to be made, written notice or telephonic
notice promptly confirmed in writing of each Swingline Loan to be made
hereunder. Each such notice 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: (A) the date of Borrowing (which shall be a Business Day),
(B) the aggregate principal amount of the Swingline Loans to be made pursuant to
such Borrowing (stated in the relevant currency) and (C) whether the respective
Swingline Loans shall constitute Multicurrency Facility Revolving Loans, U.S.
Borrower Dollar Facility Swingline Loans or Bermuda Borrower Dollar Facility
Swingline Loans.

                  (ii)     Mandatory Borrowings shall be made upon the notice
specified in Section 1.01(g) or (h), as applicable, with each Borrower
irrevocably agreeing, by its incurrence of any Swingline Loan, to the making of
the Mandatory Borrowings as set forth in Section 1.01(g) or (h), as applicable.

                  (c)      Without in any way limiting the obligation of either
Borrower to confirm in writing any telephonic notice permitted to be given
hereunder, the Administrative Agent or the Swingline Lender (in the case of a
Borrowing of Swingline Loans), the respective Issuing Lender (in the case of the
issuance of Letters of Credit) or the respective Bank Guaranty Issuer (in the
case of the issuance of Bank Guaranties), as the case may be, may, prior to
receipt of written confirmation, act without liability upon the basis of such
telephonic notice, believed by the Administrative Agent, the Swingline Lender,
such Issuing Lender or such Bank Guaranty Issuer, as the case may be, in good
faith to be from an Authorized Officer of such Borrower. In each such case, the
Administrative Agent's, the Swingline Lender's, the respective Issuing Lender's
or the respective Bank Guaranty Issuer's record of the terms of such telephonic
notice shall be conclusive evidence of the contents of such notice, absent
manifest error.

                  1.03 Disbursement of Funds. Not later than 1:00 P.M. (New York
time) on the date specified in each Notice of Borrowing (or (x) in the case of
Swingline Loans, not later than 3:00 P.M. (New York time) on the date specified
pursuant to Section 1.03(b)(i) and (y) in the case of Mandatory Borrowings, not
later than 10:00 A.M. (New York time) on the date specified in Section 1.01(g)
or (h), as applicable), each Lender with a Commitment under the respective
Tranche (or each Lender required to make Loans pursuant to the respective
Mandatory Borrowing), 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 (or in the case of Swingline Loans, the Swingline Lender shall make
available the full amount thereof). All such amounts shall be made available in
Dollars (in the case of Dollar Denominated Loans) or in Euros (in the case of
Euro Denominated Loans), as the case may be, and in immediately available funds
at the Payment Office of the Administrative Agent, and the Administrative Agent
will make available

                                      -10-



to the respective Borrower the Payment Office or such other location as may be
reasonably satisfactory to the Administrative Agent and specified in the
relevant Notice of Borrowing (or to the Swingline Lender in the case of a
Mandatory Borrowing) the aggregate of the amounts so made available by the
Lenders prior to (x) 3:00 P.M. (New York time) on such day (excluding Swingline
Loans and Revolving Loans made pursuant to Mandatory Borrowings) and (y) 4:00
P.M. (New York time) on such day, in the case of any Swingline Loan, in each
case to the extent of funds actually received by the Administrative Agent prior
to such times on such day. 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 U.S. Borrower or the Bermuda Borrower, as the
case may be, interest on such corresponding amount in respect of each day from
the date such corresponding amount was made available by the Administrative
Agent to the respective 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 and (ii) if
recovered from the respective Borrower, the rate of interest applicable to the
respective 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 the relevant Borrower may have
against any Lender as a result of any failure by such Lender to make Loans
hereunder.

                  1.04 Notes. (a) Subject to the provisions of Section 1.05(k),
the Bermuda Borrower's (in the case of Tranche B Term Loans, Multicurrency
Facility Revolving Loans, Multicurrency Facility Swingline Loans, Bermuda
Borrower Dollar Facility Revolving Loans and Bermuda Borrower Dollar Facility
Swingline Loans) and the U.S. Borrower's (in the case of Tranche A Term Loans,
U.S. Borrower Dollar Facility Revolving Loans and U.S. Borrower Dollar Facility
Swingline Loans) obligation to pay the principal of, and interest on, the Loans
made by each Lender shall be evidenced (i) if Tranche A 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 A Term Note" and, collectively, the "Tranche A Term
Notes"), (ii) if Tranche B 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 B Term
Note" and, collectively, the "Tranche B Term Notes"), (iii) if Multicurrency
Facility Revolving Loans, by a promissory note duly executed and delivered by
the Bermuda Borrower substantially in the form of Exhibit B-3, with blanks
appropriately completed in conformity herewith (each, a "Multicurrency Facility
Revolving Note" and, collectively, the "Multicurrency Facility Revolving
Notes"), (iv) if U.S. Borrower Dollar Facility Revolving Loans, by a promissory
note

                                      -11-



duly executed and delivered by the U.S. Borrower substantially in the form of
Exhibit B-4, with blanks appropriately completed in conformity herewith (each, a
"U.S. Borrower Dollar Facility Revolving Note" and, collectively, the "U.S.
Borrower Dollar Facility Revolving Notes"), (v) if Bermuda Borrower Dollar
Facility Revolving Loans, by a promissory note duly executed and delivered by
the Bermuda Borrower substantially in the form of Exhibit B-5, with blanks
appropriately completed in conformity herewith (each, a "Bermuda Borrower Dollar
Facility Revolving Note" and, collectively, the "Bermuda Borrower Dollar
Facility Revolving Notes"), (vi) if Multicurrency Facility Swingline Loans, by a
promissory note duly executed and delivered by the Bermuda Borrower
substantially in the form of Exhibit B-6, with blanks appropriately completed in
conformity herewith (the "Multicurrency Facility Swingline Note"), (vii) if U.S.
Borrower Dollar Facility Swingline Loans, by a promissory note duly executed and
delivered by the U.S. Borrower substantially in the form of Exhibit B-7, with
blanks appropriately completed in conformity herewith (the "U.S. Borrower Dollar
Facility Swingline Note"), and (viii) if Bermuda Borrower Dollar Facility
Swingline Loans, by a promissory note duly executed and delivered by the Bermuda
Borrower substantially in the form of Exhibit B-8, with blanks appropriately
completed in conformity herewith (the "Bermuda Borrower Dollar Facility
Swingline Note").

                  (b)      The Tranche A Term Note issued to each Lender with a
Tranche A Term Loan Commitment or outstanding Tranche A Term Loans shall (i) be
executed by the U.S. Borrower, (ii) be payable to such Lender or its registered
assigns and be dated the Initial Borrowing Date (or, in the case of any Tranche
A Term Note issued after the Initial Borrowing Date, the date of issuance
thereof), (iii) be in a stated principal amount (expressed in Dollars) equal to
the Tranche A Term Loan Commitment of such Lender on the Initial Borrowing Date
before giving effect to any reductions thereto on such date (or, in the case of
any Tranche A Term Note issued after the Initial Borrowing Date, in a stated
principal amount (expressed in Dollars) equal to the outstanding principal
amount of the Tranche A Term Loan of such Lender on the date of the issuance
thereof) and be payable (in Dollars) in the principal amount of the Tranche A
Term Loan evidenced thereby from time to time, (iv) mature on the Tranche A Term
Loan Maturity Date, (v) bear interest as provided in the appropriate clauses of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary repayment as provided in
Section 4.01 and mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.

                  (c)      The Tranche B Term Note issued to each Lender with a
Tranche B Term Loan Commitment or outstanding Tranche B Term Loans shall (i) be
executed by the Bermuda Borrower, (ii) be payable to such Lender (or an
affiliate designated by such Lender) or its registered assigns and be dated the
Initial Borrowing Date (or, in the case of any Tranche B Term Note issued after
the Initial Borrowing Date, the date of issuance thereof), (iii) be in a stated
principal amount (expressed in Dollars) equal to the Tranche B Term Loan
Commitment of such Lender on the Initial Borrowing Date (or, in the case of any
Tranche B Term Note issued after the Initial Borrowing Date, in a stated
principal amount (expressed in Dollars) equal to the outstanding principal
amount of the Tranche B Term Loan of such Lender on the date of the issuance
thereof) and be payable (in Dollars) in the principal amount of the Tranche B
Term Loan evidenced thereby from time to time, (iv) mature on the Tranche B Term
Loan Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base

                                      -12-



Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vi) be
subject to voluntary repayment as provided in Section 4.01 and mandatory
repayment as provided in Section 4.02 and (vii) be entitled to the benefits of
this Agreement and the other Credit Documents.

                  (d)      The Multicurrency Facility Revolving Note issued to
each Multicurrency Facility RL Lender shall (i) be executed by the Bermuda
Borrower, (ii) be payable to the order of such Multicurrency Facility RL Lender
(or an affiliate designated by such Multicurrency Facility RL Lender) or its
registered assigns and be dated the Initial Borrowing Date (or, if issued
thereafter, the date of issuance thereof), (iii) be in a stated principal amount
(expressed in Dollars) equal to the Multicurrency Facility Revolving Loan
Commitment of such Multicurrency Facility RL Lender on the date of issuance
thereof (or, if issued after the termination of such Multicurrency Facility
Revolving Loan Commitment, in an amount equal to the Individual Multicurrency
Facility RL Exposure of the respective Multicurrency Facility RL Lender),
provided that if, because of fluctuations in exchange rates after the Initial
Borrowing Date, the Multicurrency Facility Revolving Note of any Multicurrency
Facility RL Lender would not be at least as great as the outstanding principal
amount (taking the Dollar Equivalent of all Euro Denominated Loans evidenced
thereby) of the Multicurrency Facility Revolving Loans made by such
Multicurrency Facility RL Lender at any time outstanding, the respective
Multicurrency Facility RL Lender may request (and in such case the Bermuda
Borrower shall promptly execute and deliver) a new Multicurrency Facility
Revolving Note in an amount equal to the aggregate principal amount (taking the
Dollar Equivalent of all Euro Denominated Loans evidenced thereby) of the
Multicurrency Facility Revolving Loans of such Multicurrency Facility RL Lender
outstanding on the date of the issuance of such new Multicurrency Facility
Revolving Note, (iv) with respect to each Multicurrency Facility Revolving Loan
evidenced thereby, be payable in the respective Available Currency in which such
Multicurrency Facility Revolving Loan was made, provided that the obligations
with respect to each Euro Denominated Loan evidenced thereby shall be subject to
conversion into Dollar Denominated Loans as provided in (and in the
circumstances contemplated by) Section 1.14, (v) mature on the Revolving Loan
Maturity Date, (vi) bear interest as provided in the appropriate clauses of
Section 1.08 in respect of the Multicurrency Facility Revolving Loans evidenced
thereby from time to time, (vii) be subject to voluntary prepayment as provided
in Section 4.01 and mandatory repayment as provided in Section 4.02 and (viii)
be entitled to the benefits of this Agreement and the other Credit Documents.

                  (e)      The U.S. Borrower Dollar Facility Revolving Note
issued to each Dollar Facility RL Lender shall (i) be executed by the U.S.
Borrower, (ii) be payable to the order of such Dollar Facility RL Lender or its
registered assigns and be dated the Initial Borrowing Date (or, if issued
thereafter, the date of issuance thereof), (iii) be in a stated principal amount
(expressed in Dollars) equal to the Dollar Facility Revolving Loan Commitment of
such Dollar Facility RL Lender on the date of issuance thereof (or, if issued
after the date of the termination of such Dollar Facility Revolving Loan
Commitment, in a stated principal amount equal to the Individual U.S. Borrower
Dollar Facility RL Exposure of the respective Dollar Facility RL Lender) and be
payable in Dollars in the outstanding principal amount of Dollar Facility
Revolving Loans evidenced thereby, (iv) mature on the Revolving Loan Maturity
Date, (v) bear interest as provided in the appropriate clauses of Section 1.08
in respect of Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary

                                      -13-



prepayment as provided in Section 4.01 and mandatory repayment as provided in
Section 4.02 and (vii) be entitled to the benefits of this Agreement and the
other Credit Documents.

                  (f)      The Bermuda Borrower Dollar Facility Revolving Note
issued to each Dollar Facility RL Lender shall (i) be executed by the Bermuda
Borrower, (ii) be payable to the order of such Dollar Facility RL Lender or its
registered assigns and be dated the Initial Borrowing Date (or, if issued
thereafter, the date of issuance thereof), (iii) be in a stated principal amount
(expressed in Dollars) equal to the Dollar Facility Revolving Loan Commitment of
such Dollar Facility RL Lender on the date of issuance thereof (or, if issued
after the date of the termination of such Dollar Facility Revolving Loan
Commitment, in a stated principal amount equal to the Individual Bermuda
Borrower Dollar Facility RL Exposure of the respective Dollar Facility RL
Lender) and be payable in Dollars in the outstanding principal amount of Dollar
Facility Revolving Loans evidenced thereby, (iv) mature on the Revolving Loan
Maturity Date, (v) bear interest as provided in the appropriate clauses of
Section 1.08 in respect of Base Rate Loans and Eurodollar Loans, as the case may
be, evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01 and mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.

                  (g)      The Multicurrency Facility Swingline Note issued to
the Swingline Lender shall (i) be executed by the Bermuda Borrower, (ii) be
payable to the order of the Swingline Lender and be dated the Initial Borrowing
Date, (iii) be in a stated principal amount (expressed in Dollars) equal to the
Maximum Swingline Amount, provided that if, because of fluctuations in exchange
rates after the Initial Borrowing Date, the Multicurrency Facility Swingline
Note would not be at least as great as the outstanding principal amount (taking
the Dollar Equivalent of all Multicurrency Facility Swingline Loans denominated
in Euros) of Multicurrency Facility Swingline Loans at any time outstanding, the
Swingline Lender may request that the Bermuda Borrower (and in such case the
Bermuda Borrower shall) promptly execute and deliver a new Multicurrency
Facility Swingline Note in an amount equal to the aggregate principal amount
(taking the Dollar Equivalent of all Multicurrency Facility Swingline Loans
outstanding in Euros) of Multicurrency Facility Swingline Loans outstanding,
(iv) be payable with respect to each Multicurrency Facility Swingline Loan in
the respective Available Currency in which such Multicurrency Facility Swingline
Loan was made, provided that the obligations evidenced by the Multicurrency
Facility Swingline Note with respect to Multicurrency Facility Swingline Loans
incurred in Euros shall be subject to conversion into Dollar Denominated Loans
as provided in (and in the circumstances contemplated by) Section 1.14, (v)
mature on the Swingline Expiry Date, (vi) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Multicurrency Facility
Swingline Loans evidenced thereby from time to time, (vii) be subject to
voluntary prepayment as provided in Section 4.01 and mandatory repayment as
provided in Section 4.02 and (viii) be entitled to the benefits of this
Agreement and the other Credit Documents.

                  (h)      The U.S. Borrower Dollar Facility Swingline Note
issued to the Swingline Lender shall (i) be executed by the U.S. Borrower, (ii)
be payable to the order of the Swingline Lender or its registered assigns and be
dated the Initial Borrowing Date, (iii) be in a stated principal amount
(expressed in Dollars) equal to the Maximum Swingline Amount and be payable in
Dollars in the principal amount of the outstanding Dollar Facility Swingline
Loans evidenced thereby from time to time, (iv) mature on the Swingline Expiry
Date, (v) bear interest

                                      -14-



as provided in the appropriate clause of Section 1.08 in respect of the Base
Rate Loans evidenced thereby, (vi) be subject to voluntary prepayment as
provided in Section 4.01 and mandatory repayment as provided in Section 4.02 and
(vii) be entitled to the benefits of this Agreement and the other Credit
Documents.

                  (i)      The Bermuda Borrower Dollar Facility Swingline Note
issued to the Swingline Lender shall (i) be executed by the Bermuda Borrower,
(ii) be payable to the order of the Swingline Lender or its registered assigns
and be dated the Initial Borrowing Date, (iii) be in a stated principal amount
(expressed in Dollars) equal to the Maximum Swingline Amount and be payable in
Dollars in the principal amount of the outstanding Dollar Facility Swingline
Loans evidenced thereby from time to time, (iv) mature on the Swingline Expiry
Date, (v) bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Base Rate Loans evidenced thereby, (vi) be subject to voluntary
prepayment as provided in Section 4.01 and mandatory repayment as provided in
Section 4.02 and (vii) be entitled to the benefits of this Agreement and the
other Credit Documents.

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

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

                  1.05 Conversions. Each Borrower shall have the option to
convert, on any Business Day occurring after the Initial Borrowing Date, all or
a portion equal to at least the applicable Minimum Borrowing Amount (and, if
greater, in an integral multiple of $500,000) of the outstanding principal
amount of Dollar Denominated Loans (other than Dollar Denominated Swingline
Loans, which shall at all times be maintained as Base Rate Loans) made pursuant
to one or more Borrowings of one or more Types of Dollar Denominated Loans under
a single Tranche into a Borrowing or Borrowings of another Type of Dollar
Denominated 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

                                      -15-



made pursuant to a single Borrowing to less than the applicable Minimum
Borrowing Amount applicable thereto, (ii) unless the Required Lenders otherwise
agree, Base Rate Loans may only be converted into Eurodollar Loans if no Default
or Event of Default is in existence on the date of conversion, (iii) unless the
Administrative Agent has determined that the Syndication Date has occurred (at
which time this clause (iii) shall no longer be applicable), prior to the 90th
day after the Initial Borrowing 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 or third Interest Period referred to in clause
(B) of each of Sections 1.01(a)(iii) 1.01(b)(iii) and 1.01(d)(ii) and clause (1)
of Section 1.01(c)(ii) and so long as such conversion does not result in a
greater number of Borrowings of Eurodollar Loans prior to the 90th day after the
Initial Borrowing Date as are permitted under Sections 1.01(a)(iii) 1.01(b)(iii)
and 1.01(d)(ii) and clause (1) of Section 1.01(c)(ii) and (iv) no conversion
pursuant to this Section 1.06 shall result in a greater number of Borrowings of
Euro Rate Loans than is permitted under Section 1.02. Each such conversion shall
be effected by a 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 Dollar Denominated Loans to be so
converted, the Borrowing or Borrowings pursuant to which such Dollar Denominated
Loans were made and, if to be converted into Eurodollar Loans, the Interest
Period to be initially applicable thereto. The Administrative Agent shall give
each Lender prompt notice of any such proposed conversion affecting any of its
Dollar Denominated Loans.

                  1.06 Pro Rata Borrowings. All Borrowings of Tranche A Term
Loans, Tranche B Term Loans, Multicurrency Facility Revolving Loans (including
Mandatory Multicurrency Facility RL Borrowings) and Dollar Facility Revolving
Loans (including U.S. Borrower Dollar Facility Revolving Loans, Bermuda Borrower
Dollar Facility Revolving Loans and Mandatory Dollar Facility RL Borrowings)
under this Agreement shall be incurred from the Lenders pro rata on the basis of
such Lenders' Tranche A Term Loan Commitments, Tranche B Term Loan Commitments,
Multicurrency Facility RL Percentages or Dollar Facility RL Percentages, as the
case may be. All Borrowings of Swingline Loans shall be incurred from the
Swingline Lender. 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.

                  1.07 Interest. (a) The U.S. Borrower hereby agrees to pay (in
the case of Tranche A Term Loans and U.S. Borrower Dollar Facility Revolving
Loans, in each case maintained as Base Rate Loans, and U.S. Borrower Dollar
Facility Swingline Loans) and the Bermuda Borrower hereby agrees to pay (in the
case of Tranche B Term Loans, Multicurrency Facility Revolving Loans,
Multicurrency Facility Swingline Loans and Bermuda Borrower Dollar Facility
Revolving Loans, in each case maintained as Base Rate Loans, and Bermuda
Borrower Dollar Facility Swingline Loans (including any Euro Denominated Loan
made to the Bermuda Borrower and converted into a Dollar Denominated Loan
pursuant to Section 1.14)), interest in respect of the unpaid principal amount
of each Base Rate Loan made to it from the date the proceeds thereof are made
available to it (or, in the case of a conversion of any Euro Denominated Loan
into a Dollar Denominated Loan pursuant to Section 1.14, from the date of the
conversion of such Loan) until the earlier of (i) the maturity (whether by
acceleration or

                                      -16-



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 A Term Loans and U.S. Borrower Dollar Facility Revolving Loans
maintained as Eurodollar Loans) and the Bermuda Borrower hereby agrees to pay
(in the case of Tranche B Term Loans, Multicurrency Facility Revolving Loans and
Bermuda Borrower Dollar Facility Revolving Loans maintained as Eurodollar
Loans), interest in respect of the unpaid principal amount of each Eurodollar
Loan made to it from the date the proceeds thereof are made available to it
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)      The Bermuda Borrower hereby agrees to pay interest in
respect of the unpaid principal amount of each Euro Denominated Revolving Loan
made to it from the date the proceeds thereof are made available to it until the
maturity thereof (whether by acceleration, prepayment or otherwise) at a rate
per annum which shall, during each Interest Period applicable thereto, be equal
to the sum of the relevant Applicable Margin as in effect from time to time plus
Euro LIBOR for such Interest Period plus any Mandatory Costs.

                  (d)      The Bermuda Borrower hereby agrees to pay interest in
respect of the unpaid principal amount of each Euro Denominated Swingline Loan
made to it from the date the proceeds thereof are made available to it until the
maturity thereof (whether by acceleration, prepayment or otherwise) at a rate
per annum which shall be equal to the sum of the Applicable Margin for Euro
Denominated Revolving Loans as in effect from time to time plus the Overnight
Euro Rate in effect from time to time during the period such Euro Denominated
Swingline Loan is outstanding plus any Mandatory Costs.

                  (e)      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 (1) in
the case of overdue principal of, and interest or other overdue amounts owing
with respect to, Euro Denominated Revolving Loans and overdue amounts owing with
respect to Euro Denominated Letter of Credit Outstandings and Euro Denominated
Bank Guaranty Outstandings, equal to 2% per annum in excess of the relevant
Applicable Margin as in effect from time to time plus Euro LIBOR for such
successive periods not exceeding three months as the Administrative Agent may
determine from time to time in respect of amounts comparable to the amount not
paid plus any Mandatory Costs, (2) in the case of overdue principal of, and
interest or other amounts owing with respect to, Euro Denominated Swingline
Loans, equal to 2% per annum in excess of the Applicable Margin for Euro
Denominated Revolving Loans as in effect from time to time plus the Overnight
Euro Rate as in effect from time to time plus any Mandatory Costs, (3) in all
other cases, 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

                                      -17-



specific Tranche, the rate otherwise applicable to Dollar Facility Revolving
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.

                  (f)      Accrued (and theretofore unpaid) interest shall be
payable (i) in respect of each Base Rate Loan and each Swingline Loan, quarterly
in arrears on each Quarterly Payment Date, (ii) in respect of each Euro Rate
Loan (other than a Euro Denominated Swingline 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.

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

                  1.08 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 Euro Rate Loan (other than a Euro Denominated Swingline
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 Euro Rate 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 (each, an "Interest Period") applicable to such Euro Rate Loan,
which Interest Period shall, at the option of such Borrower (but otherwise
subject to clause (B) of Sections 1.01(a)(iii) 1.01(b)(iii) and 1.01(d)(ii) and
clause (1) of Section 1.01(c)(ii) and clause (iii) of the proviso appearing in
Section 1.06) be (x) in the case of a Eurodollar Loan, a one, two, three or
six-month period or (y) in the case of any Euro Denominated Loan (other than a
Euro Denominated Swingline Loan), a one, two, three or six-month period or (if
required pursuant to clause (2) of Section 1.01(c)(ii)) a one-week period;
provided that:

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

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

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

                                      -18-



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

                  (v)      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; and

                  (vi)     no Interest Period in respect of any Borrowing of
         Tranche A Term Loans or Tranche B 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 A Term
         Loans or Tranche B Term Loans, as the case may be, which have Interest
         Periods which will expire after such date will be in excess of the
         aggregate principal amount of such Tranche A Term Loans or Tranche B
         Term Loans, as the case may be, then outstanding less the aggregate
         amount of such required Scheduled Repayment.

With respect to any Euro Denominated Loans (other than Euro Denominated
Swingline Loans), at the end of any Interest Period applicable to a Borrowing
thereof, the Bermuda Borrower may elect to split the respective Borrowing into
two or more Borrowings of the same Type or combine two or more Borrowings of the
same Type into a single Borrowing, in each case, by having an Authorized Officer
of the Bermuda Borrower give notice thereof together with its election of one or
more Interest Periods, in each case so long as each resulting Borrowing (x) has
an Interest Period which complies with the foregoing requirements of this
Section 1.09, (y) has a principal amount which is not less than the Minimum
Borrowing Amount applicable to Borrowings of the respective Type and Tranche,
and (z) does not cause a violation of the requirements of Section 1.02. If upon
the expiration of any Interest Period applicable to a Borrowing of Euro Rate
Loans, the respective Borrower has failed to elect, or is not permitted to
elect, a new Interest Period to be applicable to such Euro Rate Loans as
provided above, such Borrower shall be deemed to have elected (x) if Eurodollar
Loans, to convert such Eurodollar Loans into Base Rate Loans and (y) if Euro
Denominated Loans, to select a one-month Interest Period for such Euro
Denominated Loans, in any such case effective as of the expiration date of such
current Interest Period.

                  1.09 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 clauses (i) and (iv) below, may be made only by the
Administrative Agent):

                  (i)      on any Interest Determination Date that, by reason of
         any changes arising after the 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 respective Euro Rate; or

                                      -19-



                  (ii)     at any time, that such Lender shall incur increased
         costs or reductions in the amounts received or receivable hereunder
         with respect to any Euro Rate Loan because of (x) any change since the
         Effective Date in any applicable law or governmental rule, regulation,
         order, guideline or request (whether or not having the force of law) or
         in the interpretation or administration thereof and including the
         introduction of any new law or governmental rule, regulation, order,
         guideline or request, such as, for example, but not limited to (A) a
         change in the basis of taxation of 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 date of this Agreement
         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 Effective Date, that the making
         or continuance of any Euro Rate Loan has been made unlawful by any law
         or governmental rule, regulation or order (or would conflict with any
         governmental rule, regulation, guideline, request or order not having
         the force of law but with which such Lender customarily complies even
         though the failure to comply therewith would not be unlawful), or
         impracticable as a result of a contingency occurring after the
         Effective Date which materially and adversely affects the applicable
         interbank market; or

                  (iv)     at any time that Euros are not available in
         sufficient amounts, as determined in good faith by the Administrative
         Agent, to fund any Borrowing of Euro Denominated Loans requested
         pursuant to Section 1.01;

then, and in any such event, such Lender (or the Administrative Agent, in the
case of clauses (i) or (iv) above) shall promptly give notice (by telephone
confirmed in writing) to the affected Borrower, and, except in the case of
clauses (i) and (iv) above, to the Administrative Agent of such determination
(which notice the Administrative Agent shall promptly transmit to each of the
other Lenders). Thereafter (w) in the case of clause (i) above, (A) in the event
Eurodollar Loans are so affected, Eurodollar Loans shall no longer be available
until such time as the Administrative Agent notifies Holdings, 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 and (B) in the event that any Euro Denominated
Loan is so affected, the relevant Euro Rate shall be determined on the basis
provided in the proviso to the definition of the relevant Euro Rate, (x) in the
case of clause (ii) above, the respective Borrower or Borrowers agrees to pay to
such Lender, upon written demand therefor, such additional amounts (in the form
of an increased rate of, or a different method of calculating, interest or
otherwise as such Lender in its sole discretion shall determine) as shall be
required to compensate such Lender for such increased costs or reductions in
amounts received or receivable hereunder (with the written notice as to the
additional amounts owed to such Lender, submitted

                                      -20-



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
receipt of such notice), (y) 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 and (z) in the case of clause (iv) above, Euro Denominated Loans (exclusive
of any such Euro Denominated Loans which have theretofore been funded) shall no
longer be available until such time as the Administrative Agent notifies the
Bermuda Borrower and the Lenders that the circumstances giving rise to such
notice by the Administrative Agent no longer exist, and any Notice of Borrowing
or notice pursuant to Section 1.03(b)(i) given by the Bermuda Borrower with
respect to such Euro Denominated Loans which have not been incurred shall be
deemed rescinded by the Bermuda Borrower. 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), (iii) or (iv) 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 Euro Rate Loan is affected by
the circumstances described in Section 1.10(a)(ii) or (iii), the affected
Borrower may (and in the case of a Euro Rate Loan affected by the circumstances
described in Section 1.10(a)(iii) shall) either (x) if the affected Euro Rate
Loan is then being made initially or pursuant to a conversion, cancel the
respective Borrowing by giving the Administrative Agent telephonic notice
(confirmed in writing) on the same date that such Borrower was notified by the
affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or
(iii) or (y) if the affected Euro Rate Loan is then outstanding, upon at least
three Business Days' written notice to the Administrative Agent, (A) in the case
of a Eurodollar Loan, require the affected Lender to convert such Eurodollar
Loan into a Base Rate Loan (which conversion, in the case of the circumstance
described in Section 1.10(a)(iii), shall occur no later than the last day of the
Interest Period then applicable to such Eurodollar Loan or such earlier day as
shall be required by applicable law) and (B) in the case of any Euro Rate Loan
(other than a Eurodollar Loan), repay all outstanding Borrowings which include
such affected Euro Rate Loans in full in accordance with the applicable
requirements of Section 4.01; provided that, (i) if the circumstances described
in Section 1.10(a)(iii) apply to any Euro Denominated Loan, the Bermuda Borrower
may, in lieu of taking the actions described above, maintain such Euro
Denominated Loan outstanding, in which case, (x) in the case of Euro Denominated
Revolving Loans, the applicable Euro Rate shall be determined on the basis
provided in the proviso to the definition of Euro LIBOR and (y) in the case of
Euro Denominated Swingline Loans, the applicable interest rate shall be
determined on the basis provided in the proviso to the definition of Overnight
Euro Rate, as the case may be, unless the maintenance of such Euro Denominated
Loan outstanding on such basis would not stop the conditions described in
Section 1.10(a)(iii) from existing (in which case the actions described above,
without giving effect to the proviso, shall be required to be taken) and (ii) if
more than one Lender is affected at any time, then all affected Lenders must be
treated the same pursuant to this Section 1.10(b).

                  (c)      If any Lender shall have determined after the
Effective Date that the adoption or effectiveness after the Effective Date of
any applicable law, rule or regulation regarding capital adequacy, or any change
therein, or any change after the Effective Date in the interpreta-

                                      -21-



tion 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 corporation 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
corporation'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 corporation could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Lender's or
such other corporation'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 clause (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 corporation for such reduction in the rate of return
to such Lender or such other corporation. 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. For the avoidance of doubt, nothing in this Section 1.10(c)
shall require either Borrower or Holdings to pay to any Lender any amount for
which such Lender is compensated by way of payment of Mandatory Costs.

                  (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 Euro Denominated Loans or any category of liabilities
which includes deposits by reference to which the interest rate on any Euro
Denominated Loan is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Lender to
non-United States residents, then, unless such reserves are included in the
calculation of the interest rate applicable to such Euro Denominated Loans or in
Section 1.10(a)(ii), such Lender shall promptly notify Holdings and/or the
Bermuda Borrower in writing specifying the additional amounts required to
indemnify such Lender against the cost of maintaining such reserves (such
written notice to provide in reasonable detail a computation of such additional
amounts) and the Bermuda Borrower shall pay, to such Lender such specified
amounts as additional interest at the time that the Bermuda Borrower is
otherwise required to pay interest in respect of such Euro Denominated Loan or,
if later, on written demand therefor by such Lender.

                  1.10 Compensation. The Borrowers jointly and severally agree
to compensate each Lender, upon its written request (which request shall set
forth in reasonable detail the basis

                                      -22-



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 Euro Rate 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,
Euro Rate Loans does not occur on a date specified therefor in a Notice of
Borrowing or Notice of Conversion/Continuation (whether or not withdrawn by the
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, 4.01 or 13.12(b)) or conversion of any of its Euro Rate Loans occurs on a
date which is not the last day of an Interest Period applicable thereto; (iii)
if any prepayment of any of its Euro Rate Loans 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 the respective
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).
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.

                  1.11 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, Letters of Credit 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 Loans, Dollar
Denominated Letter of Credit Outstandings and Dollar Denominated Bank Guaranty
Outstandings versus Euro Denominated Loans, Euro Denominated Letter of Credit
Outstandings and Euro Denominated Bank Guaranty Outstandings); provided that,
for designations made after the Effective Date (unless such designation is made
after the occurrence of a Sharing Event as a result of any Lender's purchase of
Loans 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 the
Borrowers shall not be obligated to pay such excess increased costs (although if
such designation results in increased costs, the Borrowers 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, each 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

                                      -23-



Lender) to designate another lending office for any Loans, Letters of Credit or
Bank Guaranties affected by such event, provided that such designation is made
on such terms that such Lender and its lending office suffer no economic, legal
or regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of such Section. Nothing in this Section 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.

                  1.12 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 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 "Replacement 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 Holdings, 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 (w) 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 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 at such time, together
         with all then unpaid interest with respect thereto at such time, (C) 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)

                                      -24-



         such Replaced Lender at such time, together with all then unpaid
         interest with respect thereto at such time, and (D) 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, (x) in the case
         of the replacement of any Multicurrency Facility Revolving Loan
         Commitment and/or Dollar Facility Revolving Loan Commitment, the
         respective Issuing Lender amounts equal to such Replaced Lender's
         Multicurrency Facility RL Percentage and/or Dollar Facility RL
         Percentage, as the case may be, of any Unpaid Drawings pursuant to
         Letters of Credit issued pursuant to the respective Tranche evidenced
         by such Commitments (which at such time remain Unpaid Drawings) with
         respect to Letters of Credit issued by such Issuing Lender to the
         extent such amount was not theretofore funded by such Replaced Lender,
         (y) in the case of the replacement of any Multicurrency Facility
         Revolving Loan Commitment, the respective Bank Guaranty Issuer amounts
         equal to such Replaced Lender's Multicurrency Facility RL Percentage of
         any Unreimbursed Payments pursuant to Bank Guaranties (which at such
         time remain Unreimbursed Payments) with respect to Bank Guaranties
         issued by such Bank Guaranty Issuer to the extent such amount was not
         theretofore funded by such Replaced Lender and (z) in the case of any
         replacement of Multicurrency Facility Revolving Loan Commitments or
         Dollar Facility Revolving Loan Commitments, the Swingline Lender an
         amount equal to such Replaced Lender's pro rata share of any Mandatory
         Multicurrency Facility RL Borrowing and/or Mandatory Dollar Facility RL
         Borrowing (as appropriate) (determined in accordance with Sections
         1.01(g) and/or (h), as appropriate, and 1.07), to the extent such
         amount was not theretofore funded by such Replaced Lender, without
         duplication; and

                  (ii)     all obligations of the Borrowers 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, 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), delivery to
the Replacement Lender of the appropriate Note or Notes executed by the
respective Borrower, (x) the Replacement Lender shall become a Lender hereunder
and, unless the respective Replaced Lender continues to have outstanding Term
Loans or any Commitment hereunder, the Replaced Lender shall cease to constitute
a Lender hereunder, except with respect to indemnification provisions under this
Agreement (including, without limitation, Sections 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 Multicurrency Facility Revolving Loan
Commitment or Dollar Facility Revolving Loan Commitment pursuant to this Section
1.13, the Multicurrency Facility RL Percentages and/or Dollar Facility RL
Percentages, as the case may be, of the Lenders shall be automatically adjusted
at such time to give effect to such replacement. In connection with any
replacement of Lenders pursuant to, and as contemplated by, this Section 1.13,
each of the U.S. Borrower and the Bermuda Borrower hereby irrevocably authorizes
Holdings to take all necessary action, in the name of the U.S.

                                      -25-



Borrower or the Bermuda Borrower, as the case may be, as described above in this
Section 1.13 in order to effect the replacement of the respective Lender or
Lenders in accordance with the preceding provisions of this Section 1.13.

                  1.13 Special Provisions Applicable to Lenders Upon the
Occurrence of a Sharing Event. (a) On the date of the occurrence of a Sharing
Event, automatically (and without the taking of any action) (x) all then
outstanding Euro Denominated Loans, all Unpaid Drawings in respect of Letters of
Credit issued for either Borrower's account owed in Euros and all Unreimbursed
Payments in respect of Bank Guaranties issued for the Bermuda Borrower's account
owed in Euros, shall be automatically converted into Loans of the respective
Tranche maintained in, Unpaid Drawings of the respective Tranche owing in, or
Unreimbursed Payments owing in, Dollars (in an amount equal to the Dollar
Equivalent of the aggregate principal amount of the respective Loans, Unpaid
Drawings or Unreimbursed Payments on the date such Sharing Event first occurred,
which Loans, Unpaid Drawings and Unreimbursed Payments (i) shall continue to be
owed by the U.S. Borrower or the Bermuda Borrower, as the case may be, (ii)
shall at all times thereafter be deemed to be Base Rate Loans and (iii) shall be
immediately due and payable on the date such Sharing Event has occurred) and (y)
all principal, accrued and unpaid interest and other amounts owing with respect
to such Euro Denominated Loans, Unpaid Drawings and Unreimbursed Payments shall
be immediately due and payable in Dollars, taking the Dollar Equivalent of such
principal, accrued and unpaid interest and other amounts. The occurrence of any
conversion of Euro Denominated Loans, Unpaid Drawing or Unreimbursed Payments to
Base Rate Loans as provided above in this Section 1.14(a) shall be deemed to
constitute, for purposes of Section 1.11, a prepayment of Loans before the last
day of any Interest Period relating thereto.

                  (b)      On the date of the occurrence of any Sharing Event,
(i) if any Multicurrency Facility Swingline Loans are outstanding, a Mandatory
Multicurrency Facility RL Borrowing shall be made by the respective
Multicurrency Facility Lenders in accordance with the provisions of Section
1.01(g), (ii) if any Dollar Facility Swingline Loans are outstanding, one or
more Mandatory Dollar Facility RL Borrowings shall be made in accordance with
the requirements of Section 1.01(h), (iii) 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 various L/C Participants
in the respective Letters of Credit shall make payments to the Issuing Lender
therefor in accordance with the requirements of Section 2A.04 and (iv) 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 various B/G Participants in the respective Bank Guaranties shall make
payments to the Bank Guaranty Issuer therefor in accordance with the
requirements of Section 2B.04. Each Lender which is required to make payments
pursuant to the immediately preceding sentence shall be obligated to do so in
accordance with the terms of this Agreement. For purposes of making calculations
pursuant to the following provisions of this Section 1.14, such payments shall
be deemed to have been made on the date of the occurrence of the Sharing Event,
before making such calculations. Notwithstanding anything to the contrary
contained in the immediately preceding sentence, any Lender which has failed, or
fails, to make any payments required to be made by it as described in this
clause (b) (and/or the other relevant Sections of this Agreement) shall remain
obligated to make such payments, together with interest thereon, and shall be
obligated to the Swingline Lender, the respective Issuing Lender or the
respective Bank Guaranty Issuer, as the case may

                                      -26-



be, for any damages caused by its delay or failure in making any payments
required to be made by it as described above.

                  (c)      On the date of the occurrence of a Sharing Event, the
following actions shall be required to occur: (i) the participations of the RL
Lenders in all then outstanding Letters of Credit shall be automatically
adjusted so that each RL Lender shall participate in each outstanding Letter of
Credit (whether a Multicurrency Facility Letter of Credit or Dollar Facility
Letter of Credit) in accordance with their RL Percentages, rather than their
Multicurrency Facility RL Percentages or their Dollar Facility RL Percentages,
as the case may be, (ii) the participations of the RL Lenders in all then
outstanding Bank Guaranties shall be automatically adjusted so that each RL
Lender shall participate in each outstanding Bank Guaranty in accordance with
their RL Percentages, rather than their Multicurrency Facility RL Percentages
and (iii) if the outstanding principal of all then outstanding Revolving Loans,
and Unpaid Drawings and Unreimbursed Payments theretofore paid, and owing to,
the respective RL Lender (after giving effect to the conversions and events
required by Sections 1.14(a) and (b)), is less than its RL Percentage of the
outstanding principal amount of all Revolving Loans and the aggregate amount of
all Unpaid Drawings and Unreimbursed Payments at such time, then such RL Lender
shall purchase, for cash in Dollars, participations from other RL Lenders in
their outstanding Revolving Loans, Unpaid Drawings and/or Unreimbursed Payments
so that, after giving effect to such purchases by all RL Lenders which are in
such position, each RL Lender shall have the same credit exposure (with respect
to Revolving Loans, Unpaid Drawings and Unreimbursed Payments), as a percentage
of its Revolving Loan Commitment (before giving effect to any termination or
reduction thereof at or prior to the occurrence of the respective Sharing
Event), as each other RL Lender. Any payments made after the date of the
respective Sharing Event pursuant to the preceding sentence shall be required to
be accompanied by payments of interest (which shall be distributed by the
Administrative Agent to the respective Lender or Lenders entitled to receive the
respective cash payments) at the greater of the Federal Funds Rate or such rate
as may be determined by the Administrative Agent in accordance with banking
industry practice on interbank compensation. The foregoing purchases shall be
accomplished through purchases and sales of participations in the relevant
obligations as required above, and each Lender hereby agrees, at the request of
the Administrative Agent, to enter into customary participation agreements
approved by the Administrative Agent to effect the foregoing. All purchases of
sales of participating interests pursuant to this Section 1.14(d) shall be made
in Dollars. Promptly following the occurrence of a Sharing Event, the
Administrative Agent shall notify each RL Lender and shall specify the amount of
Dollars required from each RL Lender to effect the purchases and sales by the
various RL Lenders of participating interests in the amounts required above
(together with accrued interest with respect to the period for the most recent
payment date through the date of the Sharing Event plus any additional amounts
payable by the Borrowers pursuant to Section 4.04 in respect of such accrued and
unpaid interest). Promptly upon receipt of such request, each RL Lender required
to purchase participations as specified above shall deliver to the
Administrative Agent (in immediately available funds) Dollars in the amounts
specified by the Administrative Agent. The Administrative Agent shall promptly
deliver the amounts so received to the various RL Lenders who are selling
participations in such amounts as are needed to effect the purchases of
participations as provided above. Promptly following receipt thereof, each RL
Lender which had sold participations as provided above (through the
Administrative Agent) will deliver to each RL Lender (through the Administrative
Agent) which so purchased a participating interest in its

                                      -27-



Loans, Unpaid Drawings or Unreimbursed Payments a participation certificate
dated the date of such purchase and in such amounts.

                  (d)      In the event that upon the occurrence of a Sharing
Event any Letter of Credit shall be outstanding and undrawn in whole or in part,
or there shall exist any Bank Guaranty Outstandings representing credit exposure
for events which have not then occurred, each RL Lender shall on the date of the
occurrence of such Sharing Event, and after giving effect to the purchases and
sales of participations on such date pursuant to preceding Section 1.14(c), but
before giving effect to the purchases and sales of participations on such date
pursuant to Section 1.14(e), promptly pay over to the Administrative Agent, in
immediately available funds in the currency in which such Letter of Credit is,
or Bank Guaranty Outstandings are, denominated, an amount equal to such RL
Lender's RL Percentage of such undrawn face amount or Bank Guaranty
Outstandings, as applicable, together with interest thereon (denominated in the
relevant currency) from the date of the Sharing Event to the date on which such
amount shall be paid to the Administrative Agent at a rate per annum equal to
that rate determined by the Administrative Agent in accordance with banking
industry rules or practice on interbank compensation. The Administrative Agent
shall establish a separate account or accounts for each RL Lender in an amount
equal to the amount received from such Lender pursuant to the preceding
sentence. The Administrative Agent shall have sole dominion and control over
each such account (each, a "Special Reserve Account"), and the amounts deposited
in each Special Reserve Account shall be held in such Special Reserve Account
until withdrawn as provided in clause (f), (g) or (h) below in this Section
1.14. The Administrative Agent shall maintain records enabling it to determine
the amounts paid over to it and deposited in the Special Reserve Accounts. As
amounts are drawn under outstanding Letters of Credit or Bank Guaranties in
respect of which amounts have been paid into the various Special Reserve
Accounts pursuant to this Section 1.14(d), amounts shall be drawn ratably from
the Special Reserve Accounts of the various RL Lenders (in accordance with their
RL Percentages) to pay such amounts. The amounts paid to the Administrative
Agent pursuant to this clause (d) shall be held as a reserve against the Letter
of Credit Outstandings and/or Bank Guaranty Outstandings, as the case may be,
shall not constitute Loans or extensions of credit to either Borrower and shall
not give rise to any obligation on the part of either Borrower to pay interest
to any Lender, it being agreed that the Borrowers' reimbursement obligations (x)
in respect of Letters of Credit shall arise only at such times as drawings or
payments are made thereunder as provided in Section 2A.04 and (y) in respect of
Bank Guaranties shall arise only at such times as drawings or payments are made
thereunder as provided in Section 2B.04.

                  (e)      Upon the occurrence of a Sharing Event, but after
giving effect to the actions required to be taken pursuant to preceding clause
(a) through (d) (although any failure by any Lender to take the actions required
of it pursuant to said clauses shall not prevent the exchanges required hereby,
but the respective 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 following clause (i) of this Section 1.14), the Lenders shall
automatically and without further action be deemed to have exchanged interests
in the respective Tranches of Loans (including, in the case of the Total
Revolving Loan Commitment, interests in each outstanding Letter of Credit, each
Unpaid Drawing, each Bank Guaranty and each Unreimbursed Payment) such that, in
lieu of the interests of each Lender in each Tranche, such Lender shall hold an
interest in all Tranches at such time

                                      -28-



(including, (x) in the case of the Total Revolving Loan Commitment, an interest
in each outstanding Letter of Credit, each Unpaid Drawing, each Bank Guaranty
and each Unreimbursed Payment and (y) each Special Reserve Account established
pursuant to Section 1.14(d) and all amounts deposited therein from time to time
or to be returned to the Lenders in accordance with the provisions of Section
1.14(g)), whether or not such Lender shall previously have participated therein,
equal to such Lender's Exchange Percentage thereof. The foregoing exchanges
shall be accomplished automatically pursuant to this clause (e) through
purchases and sales of participations in the various Tranches as required
hereby, although at the request of the Administrative Agent each Lender hereby
agrees to enter into customary participation agreements approved by the
Administrative Agent to evidence same. All purchases and sales of participating
interests pursuant to this Section 1.14(e) shall be made in Dollars. At the
request of the Administrative Agent, each Lender which has sold participations
in any of its Tranches and/or Special Reserve Accounts as provided above
(through the Administrative Agent) will deliver to each Lender (through the
Administrative Agent) which has so purchased a participating interest therein a
participation certificate in the appropriate amount as determined in conjunction
with the Administrative Agent. It is understood that the amount of 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.

                  (f)      In the event that after the occurrence of a Sharing
Event any drawing or payment shall be made in respect of a Letter of Credit or
Bank Guaranty, the Administrative Agent shall, at the request of the respective
Issuing Lender or Bank Guaranty Issuer, withdraw from the Special Reserve
Account of each of the Lenders (in accordance with each Lender's RL Percentage)
any amounts, up to the amount of such drawing or payment, deposited in the
respective Special Reserve Account and remaining on deposit and deliver such
amounts to such Issuing Lender or Bank Guaranty Issuer, as the case may be, in
satisfaction of the reimbursement obligations of the various RL Lenders under
Section 2A.04(c) or 2B.04(c), as the case may be (but not of the applicable
Borrower under Section 2A.05(a) or Section 2B.05(a), as the case may be). 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 Bank Guaranty as
provided in Section 1.14(d), the respective Issuing Lender or Bank Guaranty
Issuer shall, in the event of a drawing or payment thereunder, have a claim
against such Lender to the same extent as if such Lender had defaulted on its
obligations under Section 2A.04(c) or 2B.04(c), as the case may be, but shall
have no claim against any other Lender, notwithstanding the exchange of
interests in the applicable Borrower's reimbursement obligations pursuant to
Section 1.14(e). Each other Lender shall have a claim against such defaulting
Lender for any damages sustained by it as a result of such default.

                  (g)      In the event that after the occurrence of a Sharing
Event any Letter of Credit or Bank Guaranty shall terminate or expire undrawn or
unpaid upon, then, if and so long as the Administrative Agent determines (in its
reasonable discretion) that adequate funds remain on deposit in the Special
Reserve Accounts of the various RL Lenders to fund (without giving effect to the
purchases of participation pursuant to Section 1.14(e)) all remaining drawings
or payments which could come due in respect of outstanding Letters of Credit
and/or Bank Guaranties, the Administrative Agent shall withdraw from the Special
Reserve Account of each Lender the amount remaining on deposit therein in
respect of such Letter of Credit or Bank Guaranty (or in any case, such lesser
amount as the Administrative Agent reasonably determines

                                      -29-



can be distributed without causing the amount on deposit from the various RL
Lenders to be less than the remaining exposure on outstanding Letters of Credit
and Bank Guaranties) and distribute such amount to such Lender, provided that,
if such amount is not denominated in Dollars, the Administrative Agent shall
distribute to each such Lender the Dollar Equivalent of such amount. All amounts
received by any Lender pursuant to this clause (g) shall, to the extent it has
sold participations therein in accordance with the requirements of Section
1.14(e), be distributed by it to the various participants therein in accordance
with their participating interests.

                  (h)      Pending the withdrawal of any amounts from its
Special Reserve Account as contemplated above in this Section 1.14, the
Administrative Agent may, and shall, at the direction of the Required Lenders
and subject to such rules as the Administrative Agent may prescribe for the
avoidance of inconvenience, invest such amounts in Cash Equivalents.

                  (i)      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 hereunder in accordance with the provisions hereof. Absent
manifest error, all determinations by the Administrative Agent hereunder shall
be binding on the Borrowers and each of the Lenders. The Administrative Agent
shall have no liability to either Borrower or Lender hereunder 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).

                  (j)      Upon, and after, the occurrence of a Sharing Event
(i) no further Credit Events shall be made or occur, (ii) all amounts from time
to time accruing with respect to, and all amounts from time to time payable on
account of, Euro Denominated Loans (including, without limitation, any interest
and other amounts which were accrued but unpaid on the date of such Sharing
Event) shall be payable in Dollars (taking the Dollar Equivalents of all such
amounts on the date of the occurrence of the respective Sharing Event, with all
calculations for periods after the Sharing Event being made as if the respective
such Loan had originally been made in Dollars) and shall be distributed by the
Administrative Agent for the account of the Lenders which made such Loans or are
participating therein and (iii) all Revolving Loan Commitments of all the RL
Lenders 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 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.

                  (k)      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

                                      -30-



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
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.

                  (l)      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.

                  (m)      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, Holdings, either Borrower or any other Person for
any reason whatsoever, (ii) the occurrence or continuance of an Event of
Default, (iii) any adverse change in the condition (financial or otherwise) of
Holdings, either Borrower or any other Person, (iv) any breach of this Agreement
by Holdings, either Borrower, any Lender or any other Person, or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.

                  (n)      Notwithstanding anything to the contrary contained
elsewhere in this Agreement, upon any purchase of participations as required
above, (i) each Lender which has purchased such participations shall be entitled
to receive from the relevant Borrower any increased costs and indemnities
(including, without limitation, pursuant to Sections 1.11, 1.12, 2A.06, 2B.06
and 4.04) directly from such Borrower to the same extent as if it 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.

                                      -31-



                  SECTION 2.

                  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 Initial Borrowing Date and prior to
the fifth Business Day (or the 30th day in the case of Trade Letters of Credit)
preceding the Revolving Loan 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 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. Each Letter of Credit
shall constitute either (x) a Multicurrency Facility Letter of Credit, in which
case such Letter of Credit shall be deemed to constitute a utilization of the
Multicurrency Facility Revolving Loan 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 Multicurrency
Facility RL Lenders in accordance with their respective Multicurrency Facility
RL Percentages or (y) a Dollar Facility Letter of Credit, in which case such
Letter of Credit shall be deemed to constitute a utilization of the Dollar
Facility Revolving Loan 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 Dollar Facility RL Lenders in
accordance with their respective Dollar Facility RL Percentages. All
Multicurrency Facility Letters of Credit shall be denominated in Dollars or
Euros and shall be issued for the account of the Bermuda Borrower. All Dollar
Facility Letters of Credit shall be denominated in Dollars and shall be issued
for the account of the U.S. Borrower or the Bermuda Borrower. Each Dollar
Facility Letter of Credit shall constitute either a U.S. Borrower Dollar
Facility Letter of Credit or a Bermuda Borrower Dollar Facility Letter of
Credit. The Bermuda Borrower shall have no liability with respect to any U.S.
Borrower Dollar Facility 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 that it will, at any time and
from time to time on and after the Initial Borrowing Date and prior to the fifth
Business Day (or the 30th day in the case of Trade Letters of Credit) preceding
the Revolving Loan 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

                                      -32-



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

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

                  (iii)    a Lender Default exists with respect to any RL
         Lender, unless the Issuing Lender has entered into arrangements
         satisfactory to it and the respective Account Party to eliminate such
         Issuing Lender's risk with respect to the Lender which is the subject
         of the Lender Default, including by cash collateralizing (in Dollars or
         Euros, as appropriate) such Lender's relevant Dollar Facility RL
         Percentage or Multicurrency Facility RL Percentage, as the case may be,
         of the Dollar Facility Letter of Credit Outstandings or Multicurrency
         Facility Letter of Credit Outstandings, as the case may be.

                  (c)      Notwithstanding the foregoing, (i) no Multicurrency
Facility Letter of Credit shall be issued the Stated Amount of which, when added
to the sum of (x) the Multicurrency Facility Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid on the date of, and prior to the
issuance of, the respective Multicurrency Facility Letter of Credit) at such
time and (y) the Bank Guaranty Outstandings (exclusive of Unreimbursed Payments
which are repaid on the date of, and prior to the issuance of, the respective
Bank Guaranty) at such time, would exceed $100,000,000, (ii) no Dollar Facility
Letter of Credit shall be issued the Stated Amount of which, when added to the
Dollar Facility Letter of Credit Outstandings (exclusive of Unpaid Drawings
which are repaid on the date of, and prior to the issuance of, the respective
Dollar Facility Letter of Credit) at such time, would exceed $75,000,000, (iii)
no Multicurrency Facility Letter of Credit shall be issued at any time when the
Aggregate Multicurrency Facility RL Exposure exceeds (or would after giving
effect to such issuance exceed) the Total Multicurrency Facility Revolving Loan
Commitment at such time, (iv) no Dollar Facility Letter of Credit shall be
issued at any time when the Aggregate Dollar Facility RL Exposure exceeds (or
would after giving effect to such issuance exceed) the Total Dollar Facility
Revolving Loan Commitment at such time, (v) no Bermuda Borrower Dollar Facility
Letter of Credit shall be issued at any time when the Aggregate Bermuda Borrower
Dollar Facility RL Exposure exceeds (or would after giving effect to such
issuance exceed) $50,000,000, (vi) (x) each Standby Letter of Credit shall by
its terms terminate on or before the

                                      -33-



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 Revolving Loan
Maturity Date, on terms acceptable to the Issuing Lender thereof) 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, (vii) (x) no Standby Letter of Credit shall have an expiry date
occurring later than the fifth Business Day preceding the Revolving Loan
Maturity Date and (y) no Trade Letter of Credit shall have an expiry date
occurring later than 30 days prior to the Revolving Loan Maturity Date, (viii)
(x) each Multicurrency Facility Letter of Credit shall be denominated in Euros
or Dollars and (y) each Dollar Facility Letter of Credit shall be denominated in
Dollars and (ix) no Issuing Lender will issue any Letter of Credit after it has
received written notice from any Credit Agreement Party 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 pursuant to certain existing letter of
credit agreements and outstanding on the 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 Euros), (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 (x) if denominated in Euros, constitute a
"Multicurrency Facility Letter of Credit" for all purposes of this Agreement,
issued, for purposes of Section 2A.04(a), on the Initial Borrowing Date and (y)
if denominated in U.S. Dollars, constitute a "U.S. Borrower Dollar Facility
Letter of Credit"(if issued for the account of the U.S. Borrower) or a "Bermuda
Borrower Dollar Facility Letter of Credit" (if issued for the account of the
Bermuda Borrower) for all purposes of this Agreement, issued, for purposes of
Section 2A.04(a), on the Initial Borrowing Date. Any Lender hereunder 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 and (y) in the case of a Euro Denominated
Letter of Credit, (euro)250,000, 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 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 whether the requested Letter of Credit shall
constitute a Multicurrency Facility Letter of Credit, a U.S. Borrower Dollar
Facility Letter of Credit or a Bermuda Borrower Dollar Facility Letter of

                                      -34-



Credit and the Available Currency in which the requested Letter of Credit is to
be denominated. 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 U.S. Borrower or the Bermuda
Borrower, as the case may be, 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 5 or 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, such Issuing Lender
shall be deemed to have sold and transferred to (i) in the case of a
Multicurrency Facility Letter of Credit, each Multicurrency Facility RL Lender
and (ii) in the case of a Dollar Facility Letter of Credit, each Dollar Facility
RL Lender (each such Lender with respect to any Letter of Credit, in its
capacity under this Section 2A.04, a "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, in a percentage equal to (x) in the case
of a Multicurrency Facility Letter of Credit, such L/C Participant's
Multicurrency Facility RL Percentage or (y) in the case of a Dollar Facility
Letter of Credit, such L/C Participant's Dollar Facility RL Percentage, in such
Multicurrency Facility Letter of Credit or Dollar Facility Letter of Credit, as
the case may be, each Drawing made thereunder and the obligations of the
respective Borrower under this Agreement with respect thereto (although Letter
of Credit Fees shall be payable directly to the Administrative Agent for the
account of the Multicurrency Facility RL Lenders or Dollar Facility RL Lenders,
as the case may be, as provided in Section 3.01(b) and the L/C Participants
shall have no right to receive any portion of any Facing Fees with respect to
any such Letters of Credit) and any security therefor or guaranty pertaining
thereto. Upon any change in (x) the Multicurrency Facility Revolving Loan
Commitments and, as a result thereof the Multicurrency Facility RL Percentages,
of the Multicurrency Facility RL Lenders pursuant to Section 1.13 or 13.04, it
is hereby agreed that, with respect to all outstanding Multicurrency Facility
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 Multicurrency Facility RL Percentages of the Multicurrency
Facility RL Lenders and (y) the Dollar Facility Revolving Loan Commitments and,
as a result thereof the Dollar Facility RL Percentages, of the Dollar Facility
RL Lenders pursuant to Sections 1.13 or 13.04, it is hereby agreed that with
respect to all outstanding Dollar Facility 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 Dollar Facility RL Percentages
of the Dollar Facility RL Lenders. With respect to each Letter of Credit from
time to time outstanding, the percentage participations therein of the various
Multicurrency Facility RL Lenders (in the case of a Multicurrency Facility
Letter of Credit) or Dollar Facility RL Lenders (in the case of a Dollar
Facility Letter of Credit) calculated as provided above in this Section 2A.04(a)
are herein called the "L/C Participation Percentages" of the various
Multicurrency Facility RL Lenders or Dollar

                                      -35-



Facility RL Lenders, as the case may be, in such Letters of Credit. All
calculations of the L/C Participation Percentages shall be made from time to
time by the Administrative Agent, which calculations shall be conclusive absent
manifest error. In addition to the adjustments contemplated above, upon the
occurrence of a Sharing Event, in accordance with the provisions of Section
1.14(d), the "L/C Participation Percentages" of the RL Lenders shall be
adjusted, so that each RL Lender shall participate in each outstanding Letter of
Credit (whether a Multicurrency Facility Letter of Credit or a Dollar Facility
Letter of Credit) in accordance with its RL Percentage, in each case as more
fully described in Section 1.14(d). In any instance described in the immediately
preceding sentence, each RL Lender shall be a L/C Participant with respect to
each Letter of Credit and its L/C Participation Percentage in each Letter of
Credit shall be determined by the Administrative Agent in accordance with the
relevant provisions of Section 1.14(d). 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 RL Lenders in
their participations in outstanding Letters of Credit, in each case in
accordance with, and subject to the provisions of, Section 1.14.

                  (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), such Issuing Lender shall promptly
notify the Administrative Agent, which shall promptly notify each L/C
Participant therein (i.e., (A) if no Sharing Event has occurred, either (x) the
Multicurrency Facility RL Lenders in the case of a Multicurrency Facility Letter
of Credit or (y) the Dollar Facility RL Lenders in the case of a Dollar Facility
Letter of Credit or (B) if a Sharing Event has occurred, each RL Lender) of such
failure, and each L/C Participant therein shall promptly and unconditionally pay
to the Administrative Agent for the account of such Issuing Lender the amount of
such L/C Participant's L/C Participation Percentage (as relates to the
respective Letter of Credit) of the respective Unpaid Drawing (with the amount
thereof and the currency in which same is owing to be calculated in accordance
with the provisions of Section 2A.05(a)) in Dollars (or, to the extent the
respective Unpaid Drawing is, in accordance with Section 2A.05(a), to be
reimbursed by the respective Account Party in Euros, Euros) and in same day
funds. If the Administrative Agent so notifies, prior to 11:00 A.M. (New York
time) on any Business Day, any L/C Participant required to fund an Unpaid
Drawing under a Letter of Credit, such L/C Participant shall make available to
the Administrative Agent at the Payment Office for the account of the respective
Issuing Lender, in Dollars (or in Euros to the extent the respective Unpaid
Drawing is required to be paid by the respective Account Party in Euros, as the
case may be, pursuant to the provisions of Section 2A.05(a)), such L/C
Participant's L/C Participation Percentage (as relates to the respective Letter
of Credit) of the amount of such payment on such

                                      -36-



Business Day in same day funds. If and to the extent that, for any reason, such
L/C Participant shall not have made its L/C Participation Percentage of the
amount of such payment available to the Administrative Agent for the account of
the respective Issuing Lender, such L/C Participant agrees to pay to the
Administrative Agent for the account of such Issuing Lender, forthwith on demand
such amount, together with interest thereon, for each day from the date the
respective Unpaid Drawing occurred until the date such amount is paid to the
Administrative Agent for the account of such Issuing Lender at the overnight
Federal Funds Rate (or, in the case of amounts owed in Euros, at the Overnight
Euro Rate), provided that if any L/C Participant does not make available to the
Administrative Agent any amounts required to be made available by it as
described above within 2 Business Days after the respective L/C Participant has
been notified by the Administrative Agent or the respective Issuing Lender to
make such amounts available, then the respective L/C Participant shall pay
interest on the amounts demanded of it at the same rates payable from time to
time by the respective Account Party on the respective Unpaid Drawings pursuant
to Section 2A.05(a). The failure of any L/C Participant to make available to the
Administrative Agent for the account of the respective Issuing Lender its
relevant L/C Participation Percentage of any payment under any Letter of Credit
issued by it shall not relieve any other L/C Participant in the respective
Letter of Credit of its obligation hereunder to make available to the
Administrative Agent for the account of such Issuing Lender its relevant L/C
Participation Percentage of any such Letter of Credit on the date required, as
specified above, but no L/C Participant shall be responsible for the failure of
any other L/C Participant to make available to the Administrative Agent for the
account of such Issuing Lender such other L/C Participant's relevant L/C
Participation Percentage of any such payment.

                  (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
pursuant to clause (c) above, such Issuing Lender shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay each L/C
Participant which has paid its relevant L/C Participation Percentage thereof, in
Dollars (or in Euros in the case of payments to be made in Euros pursuant to
Section 2A.05(a)) and in same day funds, 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.

                  (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, promptly on the first Business Day of each week, by
facsimile transmis-

                                      -37-



sion, 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, set-off 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).

                  2A.05 Agreement to Repay Letter of Credit Drawings. (a) The
U.S. Borrower hereby agrees (in the case of U.S. Borrower Dollar Facility
Letters of Credit), and the Bermuda Borrower hereby agrees (in the case of
Multicurrency Facility Letters of Credit and Bermuda Borrower Dollar Facility
Letters of Credit), to reimburse the respective Issuing Lender, by making
payment in Dollars (in the case of all Dollar Denominated Letters of Credit or,
after a Sharing Event, all Letters of Credit) or Euros (in the case of Euro
Denominated Letters of Credit at any time prior to a Sharing Event) to the
Administrative Agent in immediately available funds

                                      -38-



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 Euro Denominated Letter of
Credit which is unpaid on the date of the occurrence of a Sharing Event, or
which payments or disbursements are made thereafter, taking the Dollar
Equivalent of the amount of the respective payment or disbursement made in Euros
as such Dollar Equivalent is determined on the first date upon which the
respective Sharing Event occurs or, if later, 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 Borrower of such payment or
disbursement, 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
U.S. Borrower or the Bermuda Borrower, as the case may be, therefor at a rate
per annum which shall be (x) in the case of Dollar Denominated Letters of Credit
and other amounts owing in Dollars after the occurrence of a Sharing Event, the
Base Rate in effect from time to time plus the Applicable Margin for
Multicurrency Facility Revolving Loans (in the case of Multicurrency Facility
Letters of Credit) or Dollar Facility Revolving Loans (in the case of Dollar
Facility Letters of Credit) in each case maintained as Base Rate Loans, as in
effect from time to time and (y) in the case of Euro Denominated Letters of
Credit for periods occurring prior to the occurrence of a Sharing Event, the
Overnight Euro Rate in effect from time to time plus the Applicable Margin for
Euro Denominated Revolving Loans as in effect from time to time plus any
Mandatory Costs, provided, however, to the extent such amounts are not
reimbursed prior to 1:00 P.M. (New York time) on the third Business Day
following notice to the respective Account Party by the Administrative Agent or
the respective Issuing Lender of such payment or disbursement, interest shall
thereafter accrue on the amounts so paid or disbursed by such Issuing Lender
(and until reimbursed by the respective Account Party) at a rate per annum which
shall be (x) in the case of Dollar Denominated Letters of Credit and other
amounts owing in Dollars after the occurrence of a Sharing Event, the Base Rate
in effect from time to time plus the Applicable Margin for Multicurrency
Facility Revolving Loans (in the case of Multicurrency Facility Letters of
Credit) or Dollar Facility Revolving Loans (in the case of Dollar Facility
Letters of Credit) in each case maintained as Base Rate Loans, as in effect from
time to time plus 2% and (y) in the case of Euro Denominated Letters of Credit
for periods occurring prior to the occurrence of a Sharing Event, the Overnight
Euro Rate in effect from time to time plus the Applicable Margin for Euro
Denominated Revolving Loans as in effect from time to time plus any Mandatory
Costs plus 2%, in each such case, with interest to be payable on demand,
provided further, that it is understood and agreed, however, that the notices
referred to above in this clause (a) and in the immediately preceding proviso
shall not be required to be given if a Default or an Event of Default under
Section 10.05 shall have occurred and be continuing (in which case the Unpaid
Drawings shall be due and payable immediately without presentment, demand,
protest or notice of any kind (all of which are hereby waived by each Credit
Party) and shall bear interest at the rate provided in the foregoing proviso on
and after the third Business Day following the respective Drawing). The
respective Issuing Lender shall give the respective Account Party prompt notice
of each Drawing under any Letter of Credit,

                                      -39-



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.

                  (b)      The obligations of the U.S. Borrower (with respect to
U.S. Borrower Dollar Facility Letters of Credit) and the obligations of the
Bermuda Borrower (with respect to Multicurrency Facility letters of Credit and
Bermuda Borrower Dollar Facility 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 nonapplication 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 substantially 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 Effective Date, any
Issuing Lender or any L/C Participant determines in good faith that the adoption
or effectiveness after the Effective Date of any applicable law, rule or
regulation, order, guideline or request or any change therein, or any change
after the 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 any
Issuing Lender or any L/C Participant any other conditions directly or
indirectly affecting this Agreement, 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 such Issuing Lender or such L/C Participant of issuing,
maintaining or participating in any Letter of Credit, or to reduce the amount of
any sum received or receivable by such Issuing Lender or such L/C Participant
hereunder or reduce the rate of return on its capital with respect to Letters of
Credit, then, upon written demand to the U.S. Borrower or the Bermuda Borrower,
as the case may be, by such Issuing Lender or such L/C Participant (a copy of
which notice shall be sent by 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 U.S. Borrower or the Bermuda Borrower, as
the case may be, shall pay to such Issuing Lender or such L/C Participant for
such increased cost or reduction. A certificate

                                      -40-



submitted to the relevant Borrower by such Issuing Lender or such L/C
Participant, as the case may be (a copy of which certificate shall be sent by
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 such Issuing Lender or such
L/C Participant as aforesaid shall be final and conclusive and binding on such
Borrower absent manifest error, although the failure to deliver any such
certificate shall not release or diminish such Borrower'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 Initial Borrowing Date and prior
to the tenth Business Day preceding the Revolving Loan Maturity Date, to issue,
for the account of the Bermuda Borrower 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 Bermuda Borrower or any other Foreign Subsidiary
of the U.S. Borrower, 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 Bermuda Borrower
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
Multicurrency Facility Revolving Loan 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 Multicurrency
Facility RL Lenders in accordance with their respective Multicurrency Facility
RL Percentages. All Bank Guaranties shall be denominated in Dollars or Euros and
shall expressly provide the maximum amount that may be paid thereunder.

                  (b)      Subject to and upon the terms and conditions set
forth herein, each Bank Guaranty Issuer hereby agrees that it will, at any time
and from time to time on and after the Initial Borrowing Date and prior to the
tenth Business Day preceding the Revolving Loan Maturity Date, following its
receipt of the respective Bank Guaranty Request, issue for the account of the
Bermuda Borrower 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

                                      -41-



         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 date hereof, or any
         unreimbursed loss, cost or expense which was not applicable, in effect
         or known to such Bank Guaranty Issuer as of the date hereof and which
         such Bank Guaranty Issuer in good faith deems material to it;

                  (ii)     such Bank Guaranty Issuer shall have received written
         notice from any Credit Agreement Party or the Required Lenders prior to
         the issuance of such Bank Guaranty of the type described in clause
         (viii) of Section 2B.01(c) or the last sentence of Section 2B.03(b); or

                  (iii)    a Lender Default exists with respect to any RL
         Lender, unless the Bank Guaranty Issuer has entered into arrangements
         satisfactory to it and the Bermuda Borrower to eliminate such Bank
         Guaranty Issuer's risk with respect to the Lender which is the subject
         of the Lender Default, including by cash collateralizing (in Dollars or
         Euros, as appropriate) such Lender's Multicurrency Facility RL
         Percentage of the Bank Guaranty Outstandings.

                  (c)      Notwithstanding the foregoing, (i) no Bank Guaranty
shall be issued the Face Amount of which, when added to the sum of (x) the Bank
Guaranty Outstandings (exclusive of Unreimbursed Payments which are repaid on
the date of, and prior to the issuance of, the respective Bank Guaranty) at such
time and (y) the Multicurrency Facility Letter of Credit Outstandings (exclusive
of Unpaid Drawings which are repaid on the date of, and prior to the issuance
of, the respective Multicurrency Facility Bank Guaranty) at such time, would
exceed $100,000,000, (ii) no Bank Guaranty shall be issued at any time when the
Aggregate Multicurrency Facility RL Exposure exceeds (or would after giving
effect to such issuance exceed) the Total Multicurrency Facility Revolving Loan
Commitment at such time, (iii) 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
Revolving Loan Maturity Date, on terms acceptable to the Bank Guaranty 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 Bermuda Borrower reasonably determines that the intended
beneficiary of such Bank Guaranty will not permit same to terminate as otherwise
provided above, (iv) no Bank Guaranty shall have an expiry date occurring later
than the tenth Business Day preceding the Revolving Loan Maturity Date,
provided, however, that a Bank Guaranty shall not be required to have an expiry
date as otherwise required above if the Bermuda Borrower reasonably determines
that the beneficiary of such Bank Guaranty will not accept a Bank Guaranty with
an expiry date, (v) each Bank Guaranty shall be denominated in Euros or Dollars
and (vi) no Bank Guaranty Issuer will issue any Bank Guaranty after it has
received written notice from any Credit Agreement Party 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.

                                      -42-



                  (d)      Part B of Schedule XI hereto contains a description
of certain bank guaranties issued pursuant to certain existing bank guaranty
agreements and outstanding on the 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 Euros), (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 a "Bank Guaranty" for all purposes of this Agreement, issued,
for purposes of Section 2B.04(a), on the Initial Borrowing Date. Any Lender
hereunder (and any of such Lender's Affiliates and/or branches) which has issued
an Existing 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 and (y) in the case of a Euro Denominated
Bank Guaranty, (euro)250,000, or in each case such lesser amount as is
acceptable to the respective Bank Guaranty Issuer.

                  2B.03 Bank Guaranty Requests. (a) Whenever the Bermuda
Borrower desires that a Bank Guaranty be issued for its account, the Bermuda
Borrower shall give the Administrative Agent (at the appropriate Notice Office)
and the respective Bank Guaranty Issuer at least 3 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 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 Bermuda Borrower 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 5 or 6, as
the case may 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 Bermuda Borrower 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, such Bank Guaranty Issuer shall be deemed to have
sold and transferred to each Multicurrency Facility RL 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,
in a percentage equal to such B/G Participant's Multicurrency Facility RL
Percentage, in such Bank Guaranty, each Bank Guaranty Payment made thereunder
and the obligations of the Bermuda

                                      -43-



Borrower under this Agreement with respect thereto (although Bank Guaranty Fees
shall be payable directly to the Administrative Agent for the account of the
Multicurrency Facility RL Lenders as provided in Section 3.01(e) and the B/G
Participants shall have no right to receive any portion of any administrative
fees with respect to any such Bank Guaranties) and any security therefor or
guaranty pertaining thereto. Upon any change in the Multicurrency Facility
Revolving Loan Commitments and, as a result thereof the Multicurrency Facility
RL Percentages, of the Multicurrency Facility RL 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 Multicurrency Facility RL Percentages of the Multicurrency
Facility RL Lenders. With respect to each Bank Guaranty from time to time
outstanding, the percentage participations therein of the various Multicurrency
Facility RL Lenders calculated as provided above in this Section 2B.04(a) are
herein called the "B/G Participation Percentages" of the various Multicurrency
Facility RL Lenders in such Bank Guaranties. All calculations of the B/G
Participation Percentages shall be made from time to time by the Administrative
Agent, which calculations shall be conclusive absent manifest error. In addition
to the adjustments contemplated above, upon the occurrence of a Sharing Event,
in accordance with the provisions of Section 1.14(d), the "B/G Participation
Percentages" of the RL Lenders shall be adjusted, so that each RL Lender shall
participate in each outstanding Bank Guaranty in accordance with its RL
Percentage, in each case as more fully described in Section 1.14(d). In any
instance described in the immediately preceding sentence, each RL Lender shall
be a B/G Participant with respect to each Bank Guaranty and its B/G
Participation Percentage in each Bank Guaranty shall be determined by the
Administrative Agent in accordance with the relevant provisions of Section
1.14(d). 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 RL 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 Bermuda
Borrower 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 Bermuda
Borrower shall not have reimbursed such amount in full to such Bank Guaranty
Issuer pursuant to Section 2B.05(a), such Bank Guaranty Issuer shall promptly
notify the Administrative Agent, which shall promptly notify each B/G
Participant therein (i.e., (A) if no Sharing Event has occurred, the
Multicurrency Facility RL Lenders or (B) a Sharing Event has occurred, each RL
Lender) of such failure, and each B/G Participant therein shall promptly and
unconditionally pay to the Administrative Agent for the account of such Bank
Guaranty Issuer the amount of such B/G Participant's B/G Participation
Percentage (as relates to the respective Bank Guaranty) of the respective

                                      -44-



Unreimbursed Payment (with the amount thereof and the currency in which same is
owing to be calculated in accordance with the provisions of Section 2B.05(a)) in
Dollars (or, to the extent the respective Unreimbursed Payment is, in accordance
with Section 2B.05(a), to be reimbursed by the Bermuda Borrower in Euros, Euros)
and in same day funds. If the Administrative Agent so notifies, prior to 11:00
A.M. (New York time) on any Business Day, any B/G Participant required to fund
an Unreimbursed Payment under a Bank Guaranty, such B/G Participant shall make
available to the Administrative Agent at the Payment Office for the account of
the respective Bank Guaranty Issuer, in Dollars (or in Euros to the extent the
respective Unreimbursed Payment is required to be paid by the Bermuda Borrower
in Euros, as the case may be, pursuant to the provisions of Section 2B.05(a)),
such B/G Participant's B/G Participation Percentage (as relates to the
respective Bank Guaranty) of the amount of such payment on such Business Day in
same day funds. If and to the extent that, for any reason, such B/G Participant
shall not have made its B/G Participation Percentage of the amount of such
payment available to the Administrative Agent for the account of the respective
Bank Guaranty Issuer, such B/G Participant agrees to pay to the Administrative
Agent for the account of such Bank Guaranty Issuer, forthwith on demand such
amount, together with interest thereon, for each day from the date the
respective Unreimbursed Payment occurred until the date such amount is paid to
the Administrative Agent for the account of such Bank Guaranty Issuer at the
overnight Federal Funds Rate (or, in the case of amounts owed in Euros, at the
Overnight Euro Rate), provided that if any B/G Participant does not make
available to the Administrative Agent any amounts required to be made available
by it as described above within 2 Business Days after the respective B/G
Participant has been notified by the Administrative Agent or the respective Bank
Guaranty Issuer to make such amounts available, then the respective B/G
Participant shall pay interest on the amounts demanded of it at the same rates
payable from time to time by the respective Account Party on the respective
Unreimbursed Payments pursuant to Section 2B.05(a). The failure of any B/G
Participant to make available to the Administrative Agent for the account of the
respective Bank Guaranty Issuer its relevant B/G Participation Percentage of any
payment under any Bank Guaranty issued by it shall not relieve any other B/G
Participant in the respective Bank Guaranty of its obligation hereunder to make
available to the Administrative Agent for the account of such Bank Guaranty
Issuer its B/G Participation Percentage of any such Bank Guaranty on the date
required, as specified above, but no B/G Participant shall be responsible for
the failure of any other B/G Participant to make available to the Administrative
Agent for the account of such Bank Guaranty Issuer such other B/G Participant's
B/G Participation Percentage of any such payment.

                  (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 pursuant to clause (c) above, such Bank Guaranty Issuer shall pay
to the Administrative Agent and the Administrative Agent shall promptly pay each
B/G Participant which has paid its B/G Participation Percentage thereof, in
Dollars (or in Euros in the case of payments to be made in Euros pursuant to
Section 2B.05(a)) and in same day funds, 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.

                                      -45-



                  (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 Bermuda Borrower 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. Each
Bank Guaranty Issuer shall deliver to the Administrative Agent, 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.

                  (f)      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, set-off 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 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

                                      -46-



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 Bermuda Borrower hereby agrees to reimburse the
respective Bank Guaranty Issuer, by making payment in Dollars (in the case of
all Dollar Denominated Bank Guaranties or, after a Sharing Event, all Bank
Guaranties) or Euros (in the case of Euro Denominated Bank Guaranties at any
time prior to a Sharing Event) 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 Bermuda Borrower and such Bank Guaranty Issuer), for any payment or
disbursement (in the case of any such payment or disbursement under any Euro
Denominated Bank Guaranty which is unpaid on the date of the occurrence of a
Sharing Event, or which payments or disbursements are made thereafter, taking
the Dollar Equivalent of the amount of the respective payment or disbursement
made in Euros as such Dollar Equivalent is determined on the first date upon
which the respective Sharing Event occurs or, if later, 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
Borrower of such payment or disbursement, 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 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 Bermuda Borrower therefor at a rate per
annum which shall be (x) in the case of Euro Denominated Bank Guaranties for
periods occurring prior to the occurrence of a Sharing Event, the Overnight Euro
Rate in effect from time to time plus the Applicable Margin for Euro Denominated
Revolving Loans as in effect from time to time plus any Mandatory Costs and (y)
in the case of amounts owing in Dollars after the occurrence of a Sharing Event,
the Base Rate in effect from time to time plus the Applicable Margin for
Multicurrency Facility Revolving Loans maintained as Base Rate Loans, in each
case 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 notice to the Bermuda Borrower by the Administrative
Agent or the respective Bank Guaranty Issuer of such payment or disbursement,
interest shall thereafter accrue on the amounts so paid or disbursed by such
Bank Guaranty Issuer (and until reimbursed by the Bermuda Borrower) at a rate
per annum which shall be (x) in the case of Euro Denominated Bank Guaranties for
periods occurring prior to the occurrence of a Sharing Event, the Overnight Euro
Rate in effect from time to time plus the Applicable Margin for Euro Denominated
Revolving Loans as in effect from time to time plus any Mandatory Costs plus 2%
and (y) in the case of amounts owing in Dollars after the occurrence of a
Sharing Event, the Base Rate in effect from time to time plus the Applicable
Margin for Multicurrency Facility Revolving Loans maintained as Base Rate Loans
as in effect from time to time plus 2%, in each such case, with interest to be
payable on demand, provided further, that it is understood and agreed, however,
that the notices referred to above in this clause (a) and in the immediately
preceding proviso shall not be required to be given if a Default or an Event of
Default under Section 10.05 shall have occurred and be continuing (in which case
the Unreimbursed Payments shall be due and payable immediately

                                      -47-



without presentment, demand, protest or notice of any kind (all of which are
hereby waived by each Credit Party) and shall bear interest at the rate provided
in the foregoing proviso on and after the third Business Day following the
respective Bank Guaranty Payment). The respective Bank Guaranty Issuer shall
give the Bermuda Borrower 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 Bermuda Borrower's
obligations under this Agreement.

                  (b)      The obligations of the Bermuda Borrower 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 Bermuda Borrower 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 Bermuda Borrower
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 the Bermuda Borrower shall not 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 the Bermuda Borrower
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 Effective Date, any Bank Guaranty Issuer or any
B/G Participant determines in good faith that the adoption or effectiveness
after the Effective Date of any applicable law, rule or regulation, order,
guideline or request or any change therein, or any change after the 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 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 any Bank
Guaranty Issuer or any B/G Participant any other conditions directly or
indirectly affecting this Agreement, 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 such Bank Guaranty Issuer or such B/G Participant of issuing,
maintaining or participating in any Bank Guaranty, or to reduce the amount of
any sum received or receivable by such Bank Guaranty Issuer or such B/G
Participant hereunder or reduce the rate

                                      -48-



of return on its capital with respect to Bank Guaranties, then, upon written
demand to the Bermuda Borrower by such Bank Guaranty Issuer or such B/G
Participant (a copy of which notice shall be sent by 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 Bermuda
Borrower shall pay to such Bank Guaranty Issuer or such B/G Participant for such
increased cost or reduction. A certificate submitted to the relevant Borrower by
such Bank Guaranty Issuer or such B/G Participant, as the case may be (a copy of
which certificate shall be sent by 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 such Bank Guaranty Issuer or such B/G Participant as aforesaid shall
be final and conclusive and binding on the Bermuda Borrower absent manifest
error, although the failure to deliver any such certificate shall not release or
diminish such Borrower'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 Revolving Loan Maturity Date, the Bermuda Borrower shall either (i)
terminate each Bank Guaranty 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 without an expiry
date on terms satisfactory to such Bank Guaranty Issuer and the Administrative
Agent, with the Bermuda Borrower 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 in
respect of such Bank Guaranties.

                  SECTION 3. Fees; Commitments.

                  3.01 Fees. (a) (x) The Bermuda Borrower agrees to pay to the
Administrative Agent for distribution to each Non-Defaulting Lender with a
Multicurrency Facility Revolving Loan Commitment a commitment commission, in
Dollars, for the period from the Effective Date to but excluding the Revolving
Loan Maturity Date (or such earlier date as the Total Multicurrency Facility
Revolving Loan Commitment shall have been terminated), computed at a rate equal
to the Applicable Multicurrency Facility Commitment Fee Percentage per annum on
the daily average Unutilized Multicurrency Facility Revolving Loan Commitment of
such Non-Defaulting Lender as in effect from time to time and (y) the Borrowers
jointly and severally agree to pay to the Administrative Agent for distribution
to each Non-Defaulting Lender with a Dollar Facility Revolving Loan Commitment a
commitment commission, in Dollars, for the period from the Effective Date to but
excluding the Revolving Loan Maturity Date (or such earlier date as the Total
Dollar Facility Revolving Loan Commitment shall have been terminated), computed
at a rate equal to the Applicable Dollar Facility Commitment Fee Percentage per
annum on the daily average Unutilized Dollar Facility Revolving Loan Commitment
of such Non-Defaulting Lender as in effect from time to time (with all
commitment commissions payable as described in this clause (a) being herein
referred to as "RL Commitment

                                      -49-



Commission"). Accrued RL Commitment Commission shall be due and payable, in
Dollars, quarterly in arrears on each Quarterly Payment Date and on the
Revolving Loan Maturity Date or (i) in the case of RL Commitment Commission
payable pursuant to preceding clause (x), such earlier date upon which the Total
Multicurrency Facility Revolving Loan Commitment is terminated and (ii) in the
case of RL Commitment Commission payable pursuant to preceding clause (y), such
earlier date upon which the Total Dollar Facility Revolving Loan Commitment is
terminated.

                  (b)      (x) The Bermuda Borrower agrees to pay to the
Administrative Agent for distribution to each Multicurrency Facility RL Lender
(or, after Sharing Event has occurred, each RL Lender) (based on their
respective L/C Participation Percentages as from time to time in effect in the
outstanding Multicurrency Facility Letters of Credit) in Dollars (or, in the
case of Euro Denominated Letters of Credit, for periods prior to the occurrence
of a Sharing Event, in Euros) a fee in respect of each Multicurrency Facility
Letter of Credit issued hereunder, (y) the Bermuda Borrower agrees to pay to the
Administrative Agent for distribution to each Dollar Facility RL Lender (or,
after Sharing Event has occurred, each RL Lender) (based on their respective L/C
Participation Percentages in the outstanding Bermuda Borrower Dollar Facility
Letters of Credit) in Dollars a fee in respect of each Bermuda Borrower Dollar
Facility Letter of Credit issued hereunder and (z) the U.S. Borrower agrees to
pay to the Administrative Agent for distribution to each Dollar Facility RL
Lender (or, after Sharing Event has occurred, each RL Lender) (based on their
respective L/C Participation Percentages in the outstanding U.S. Borrower Dollar
Facility Letters of Credit) in Dollars a fee in respect of each U.S. Borrower
Dollar Facility Letter of Credit issued hereunder (with all fees payable as
described in this clause (b) being herein referred to as "Letter of Credit
Fees"), in each case, for the period from and including the date of issuance of
such Letter of Credit through the termination of such Letter of Credit, computed
at a rate per annum equal to the Applicable Margin for Multicurrency Facility
Revolving Loans (in the case of determinations pursuant to preceding clause (x))
or Dollar Facility Revolving Loans (in the case of determination pursuant to
preceding clauses (y) and (z)), in either case maintained as Euro Rate Loans, as
in effect from time to time, on (i) the daily Stated Amount of such Letter of
Credit (in the case of a Dollar Denominated Letter of Credit and, for periods
occurring after a Sharing Event, for all Letters of Credit) and (ii) the daily
Euro L/C Stated Amount of such Letter of Credit (in the case of a Euro
Denominated Letter of Credit for all periods prior to the occurrence of a
Sharing Event). Accrued Letter of Credit Fees shall be due and payable quarterly
in arrears on each Quarterly Payment Date and, in the case of Letter of Credit
Fees owing pursuant to preceding clause (x), on the first day on or after the
termination of the Total Multicurrency Facility Revolving Loan Commitment upon
which no Multicurrency Facility Letters of Credit remain outstanding and, in the
case of Letter of Credit Fees payable pursuant to preceding clauses (y) and (z),
on the first day on or after the termination of the Total Dollar Facility
Revolving Loan Commitment upon which no Dollar Facility Letters of Credit remain
outstanding.

                  (c)      Each Account Party agrees to pay to the respective
Issuing Lender, for its own account, in Dollars (in the case of each Dollar
Denominated Letter of Credit and, for all periods after the occurrence of a
Sharing Event, each Letter of Credit) or in Euros (in the case of Euro
Denominated Letters of Credit for periods prior to the occurrence of a Sharing
Event), a facing fee in respect of each Letter of Credit issued hereunder (the
"Facing Fee") for the period from and including the date of issuance of such
Letter of Credit to and including the termination

                                      -50-



or expiration of such Letter of Credit, computed at a rate equal to 1/4 of 1%
per annum of (x) the daily Stated Amount of such Letter of Credit (in the case
of a Dollar Denominated Letter of Credit, and, for all periods occurring after a
Sharing Event, all Letters of Credit) and (y) the daily Euro L/C Stated Amount
of such Letter of Credit (in the case of a Euro Denominated Letter of Credit at
any time prior to a Sharing Event), 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 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 Quarterly Payment Date and upon the first day on or after the
termination of the Total Revolving Loan 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 under
the letter of credit agreement governing the same, 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 Initial
Borrowing Date.

                  (d)      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.

                  (e)      The Bermuda Borrower agrees to pay to the
Administrative Agent for distribution to each Multicurrency Facility RL Lender
(or, after Sharing Event has occurred, each RL Lender) (based on their
respective B/G Participation Percentages as from time to time in effect in the
outstanding Bank Guaranties) in Dollars (or, in the case of Euro Denominated
Bank Guaranties, for periods prior to the occurrence of a Sharing Event, in
Euros) a fee in respect of each Bank Guaranty issued hereunder (with all fees
payable as described in this clause (e) being herein referred to as "Bank
Guaranty Fees"), in each case, for the period from and including the date of
issuance of such Bank Guaranty through the termination of such Bank Guaranty,
computed at a rate per annum equal to the Applicable Margin for Multicurrency
Facility Revolving Loans maintained as Euro Rate Loans, as in effect from time
to time, on (i) the daily Face Amount of such Bank Guaranty (in the case of a
Dollar Denominated Bank Guaranty and, for periods occurring after a Sharing
Event, for all Bank Guaranties) and (ii) the daily Euro B/G

                                      -51-



Face Amount of such Bank Guaranty (in the case of a Euro Denominated Bank
Guaranty for all periods prior to the occurrence of a Sharing Event). Accrued
Bank Guaranty Fees shall be due and payable quarterly in arrears on each
Quarterly Payment Date and on the first day on or after the termination of the
Total Multicurrency Facility Revolving Loan Commitment upon which no Bank
Guaranties remain outstanding.

                  (f)      The Bermuda Borrower agrees to pay to the respective
Bank Guaranty Issuer, for its own account, in Dollars (in the case of each
Dollar Denominated Bank Guaranty and, for all periods after the occurrence of a
Sharing Event, each Bank Guaranty) or in Euros (in the case of each Euro
Denominated Bank Guaranty for periods prior to the occurrence of a Sharing
Event), a fronting fee in respect of each Bank Guaranty issued hereunder (the
"Fronting Fee") for the period from and including the date of issuance of such
Bank Guaranty to and including the termination or expiration of such Bank
Guaranty, computed at a rate equal to 1/4 of 1% per annum of (x) the daily Face
Amount of such Bank Guaranty (in the case of a Dollar Denominated Bank Guaranty,
and, for all periods occurring after a Sharing Event, all Bank Guaranties) and
(y) the daily Euro B/G Face Amount of such Bank Guaranty (in the case of a Euro
Denominated Bank Guaranty at any time prior to a Sharing Event), 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 Quarterly Payment Date and upon the first day on or after the termination
of the Total Multicurrency Facility Revolving Loan Commitment upon which no Bank
Guaranties remain outstanding.

                  (g)      The Bermuda Borrower agrees to pay to the respective
Bank Guaranty Issuer, 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.

                  (h)      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.

                                      -52-



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

                  3.02 Voluntary Termination or Reduction of Revolving Loan
Commitments and Adjustments of Multicurrency Facility Revolving Loan
Commitments. (a) Upon at least three Business Days' prior notice from an
Authorized Officer of Holdings to the Administrative Agent at its Notice Office
(which notice the Administrative Agent shall promptly transmit to each of the
Lenders), Holdings shall have the right, at any time or from time to time,
without premium or penalty, to terminate the Total Unutilized Revolving 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 to reduce, on a pro rata
basis (based upon the relative amounts of the Total Multicurrency Facility
Revolving Loan Commitment and the Total Dollar Facility Revolving Loan
Commitment, in each case as in effect before giving effect to the respective
reduction), the Total Multicurrency Facility Revolving Loan Commitment and the
Total Dollar Facility Revolving Loan Commitment, provided that no such reduction
shall be permitted to be made pursuant to this Section 3.02(a) if the effect
thereof is to cause either (x) the Aggregate Multicurrency Facility RL Exposure
to exceed the Total Multicurrency Facility Revolving Loan Commitment after
giving effect to the reduction thereto pursuant to this Section 3.02(a) or (y)
the Aggregate Dollar Facility RL Exposure to exceed the Total Dollar Facility
Revolving Loan Commitment after giving effect to the reduction thereto pursuant
to this Section 3.02(a). Each reduction to (x) the Total Multicurrency Facility
Revolving Loan Commitment pursuant to this Section 3.02(a) shall apply to
proportionately and permanently reduce the Multicurrency Facility Revolving Loan
Commitment of each Multicurrency Facility RL Lender (based on their respective
Multicurrency Facility RL Percentages) and (y) the Total Dollar Facility
Revolving Loan Commitment pursuant to this Section 3.02(a) shall apply to
proportionally and permanently reduce the Dollar Facility Revolving Loan
Commitment of each Dollar Facility RL Lender (based on their respective Dollar
Facility RL Percentages).

                  (b)      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, Holdings 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 Multicurrency Facility Revolving Loan Commitment, if any, and/or
the Dollar Facility Revolving Loan Commitment, if any, of such Lender, so long
as (x) all Loans, 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 Multicurrency Facility RL Percentages, Dollar Facility RL
Percentages and/or related L/C Participation Percentages of the remaining
Lenders as contemplated below), neither the Individual Multicurrency Facility RL
Exposure nor the Individual Dollar Facility RL Exposure of any remaining Lender
shall exceed its Multicurrency Facility Revolving Loan Commitment or Dollar
Facility Revolving Loan Commitment, as the case may be. After giving effect to
the termination of the Commitments of

                                      -53-



any Lender pursuant to the provisions of this Section 3.02(b), 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 Multicurrency Facility Revolving Loan Commitment and/or the Dollar
Facility Revolving Loan Commitment of any Lender is terminated pursuant to this
Section 3.02(b), except in cases where the respective Commitments are replaced
in full, after giving effect to the termination of any such Commitments of a
given Lender pursuant to this Section 3.02(b), there shall occur automatic
adjustments (as determined by the Administrative Agent) in the Multicurrency
Facility RL Percentages and/or Dollar Facility RL Percentages, as the case may
be (and as a result thereof in the related L/C Participation Percentages) of the
remaining Multicurrency Facility RL Lenders and/or Dollar Facility RL Lenders,
as the case may be, after giving effect to the modifications to the
Multicurrency Facility RL Percentages and Dollar Facility RL Percentages of the
various remaining Lenders as a result of the termination of the Multicurrency
Facility Revolving Loan Commitment and/or Dollar Facility Revolving Loan
Commitment, as the case may be, of the respective Replaced Lender.

                  (c)      In connection with any reduction or termination of
the Total Unutilized Revolving Loan Commitment and/or the Multicurrency Facility
Revolving Loan Commitment and/or the Dollar Facility Revolving Loan Commitment
of any Lender pursuant to this Section 3.02 and Section 3.03, as the case may
be, each of the U.S. Borrower and the Bermuda Borrower hereby irrevocably
authorizes Holdings to take all necessary action, in the name of the U.S.
Borrower or the Bermuda Borrower, as the case may be, as described in this
Section 3.02 or Section 3.03 in order to effect the reduction or termination of
the Total Unutilized Revolving Loan Commitment and/or the Multicurrency Facility
Revolving Loan Commitment and/or the Dollar Facility Revolving Loan Commitment
of such Lender in accordance with the provisions of this Section 3.02 or Section
3.03, as the case may be.

                  3.03 Mandatory Reduction of Commitments. (a) The Total
Commitment (and the Tranche A Term Loan Commitment, the Tranche B Term Loan
Commitment and the Revolving Loan Commitment of each Lender with such a
Commitment) shall terminate in its entirety on April 30, 2003 unless the Initial
Borrowing Date has occurred on or before such date.

                  (b)      In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, the Total Tranche A Term Loan
Commitment (and the Tranche A Term Loan Commitment of each Lender with such a
Commitment) shall terminate in its entirety on the Initial Borrowing Date (after
giving effect to the making of Tranche A Term Loans on such date).

                  (c)      In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, the Total Tranche B Term Loan
Commitment (and the Tranche B Term Loan Commitment of each Lender with such a
Commitment) shall terminate in its entirety on the Initial Borrowing Date (after
giving effect to the making of Tranche B Term Loans on such date).

                                      -54-



                  (d)      In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, the Total Revolving Loan Commitment
(and the Multicurrency Facility Revolving Loan Commitment and the Dollar
Facility Revolving Loan Commitment of each Lender with such a Commitment) shall
terminate in its entirety on the earlier to occur of (i) the Revolving Loan
Maturity Date and (ii) unless the Required Lenders shall otherwise consent in
writing in their sole discretion, a Change of Control.

                  (e)      In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, the Total Multicurrency Facility
Revolving Loan Commitment and the Total Dollar Facility Revolving Loan
Commitment shall be permanently reduced from time to time to the extent required
by Section 4.02.

                  (f)      Each reduction to the Total Tranche A Term Loan
Commitment, the Total Tranche B Term Loan Commitment, the Total Multicurrency
Facility Revolving Loan Commitment and the Total Dollar Facility Revolving Loan
Commitment pursuant to this Section 3.03 as provided above (or pursuant to
Section 4.02) shall be applied proportionately to reduce the Tranche A Term Loan
Commitment, the Tranche B Term Loan Commitment, the Multicurrency Facility
Revolving Loan Commitment or the Dollar Facility Revolving Loan Commitment, as
the case may be, of each Lender with such a Commitment.

                  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 except as
otherwise provided in this Agreement, and the right to allocate such prepayments
to Tranche A Term Loans, Tranche B Term Loans, Revolving Loans and/or Swingline
Loans 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, whether such Loans are Tranche A Term Loans, Tranche B Term
         Loans, Multicurrency Facility Revolving Loans, U.S. Borrower Dollar
         Facility Revolving Loans, Bermuda Borrower Dollar Facility Revolving
         Loans, Multicurrency Facility Swingline Loans, U.S. Borrower Dollar
         Facility Swingline Loans and/or Bermuda Borrower Dollar Facility
         Swingline Loans, the amount and currency (or currencies) of the Loans
         to be prepaid, the Types of Loans to be repaid and, in the case of Euro
         Rate Loans (other than Swingline 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 (other than Dollar
         Facility Swingline Loans), (y) the date of such prepayment in the case
         of Swingline Loans, provided such notice is given prior to 10:00 A.M.
         (New York time) and (z) 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
         Euro Rate Loans (other than Euro Denominated Swingline Loans) and
         shall, except in the case of Swingline Loans, be promptly transmitted
         by the Administrative Agent to each of the Lenders;

                                      -55-



                  (ii)     each partial prepayment applied to any Tranche of
         Loans shall be in an aggregate principal amount of at least $1,000,000
         (taking the Dollar Equivalent of any amounts to be prepaid in Euros)
         (or the applicable Minimum Borrowing Amount in the case of Swingline
         Loans), provided that (x) 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 the
         Minimum Borrowing Amount applicable thereto, 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
         and (y) in the case of partial prepayments of any Borrowing of Euro
         Rate Loans (other than Euro Denominated Swingline Loans) denominated in
         currencies other than Dollars, the Bermuda Borrower shall use
         reasonable efforts to allocate such prepayments in a manner so that
         Borrowings do not remain outstanding in amounts less than the Minimum
         Borrowing Amount applicable thereto (and, to the extent such Borrowings
         would remain outstanding in amounts which are less than the Minimum
         Borrowing Amount applicable thereto, in the case of Multicurrency
         Facility Revolving Loans, the Bermuda Borrower shall repay any
         Borrowings which are less than the Minimum Borrowing Amount applicable
         thereto at the end of the then current Interest Period);

                  (iii)    at the time of any prepayment of Euro Rate Loans
         (other than Euro Denominated Swingline Loans) pursuant to this Section
         4.01 on any date other than the last day of the Interest Period
         applicable thereto, such Borrower shall pay the amounts required
         pursuant to Section 1.11;

                  (iv)     except as provided in clause (vi) below, 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,
         provided, that at such Borrower's election in connection with any
         prepayment of Multicurrency Facility Revolving Loans or Dollar Facility
         Revolving Loans pursuant to this Section 4.01, such prepayment shall
         not be applied to the prepayment of the respective Revolving Loans of a
         Defaulting Lender;

                  (v)      each prepayment of principal of Tranche A Term Loans
         and Tranche B Term Loans pursuant to this Section 4.01 shall, subject
         to the immediately succeeding proviso, be applied to reduce the then
         remaining Scheduled Repayments of the respective Tranche of Term Loans
         (x) at any time prior to the satisfaction in full of the obligations of
         the U.S. Borrower and its Subsidiaries to effect Contemplated Asset
         Sales pursuant to Section 8.22, in inverse order of maturity (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) and (y) at any time thereafter, 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); provided that repayments of any Tranche of
         Term Loans pursuant to clause (vi) below shall only apply to reduce the
         then remaining Scheduled Repayments of such Tranche to the extent the
         Term Loans so repaid are not replaced (and are not required to be
         replaced) pursuant to Section 13.12(b), with any such application to
         reduce the then remaining Scheduled Repayments of the respective
         Tranche in the manner provided above in this clause (v), unless
         otherwise specifically agreed by the Required Lenders;

                                      -56-



                  (vi)     in the event of certain refusals by a Lender as
         provided in Section 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, such Borrower may,
         upon five Business Days' written notice by an Authorized Officer of
         such Borrower to the Administrative Agent at its Notice Office (which
         notice the Administrative Agent shall promptly transmit to each of the
         Lenders), repay all Loans and pay all accrued and unpaid interest,
         Fees, and other amounts, in each case owing to such Lender (or owing to
         such Lender with respect to each Tranche which gave rise to the need to
         obtain such Lender's individual consent) in accordance with, and
         subject to the requirements of, said Section 13.12(b) so long as (A) in
         the case of the repayment of Multicurrency Facility Revolving Loans of
         any Lender pursuant to this clause (vi), the Multicurrency Facility
         Revolving Loan Commitment of such Lender is terminated concurrently
         with such repayment (at which time Schedule I shall be deemed modified
         to reflect the changed Multicurrency Facility Revolving Loan
         Commitments), (B) in the case of the repayment of Dollar Facility
         Revolving Loans of any Lender pursuant to this clause (vi), the Dollar
         Facility Revolving Loan Commitment of such Lender is terminated
         concurrently with such repayment (at which time Schedule I shall be
         deemed modified to reflect the changed Dollar Facility Revolving Loan
         Commitments), and (C) the consents required by Section 13.12(b) in
         connection with the repayment pursuant to this clause (vi) have been
         obtained; and

                  (vii)    in the case of any prepayment of Tranche B Term Loans
         by the Bermuda Borrower with the proceeds of an Investment in the
         Bermuda Partnership and the prepayment by the Bermuda Partnership of an
         intercompany loan to the Bermuda Borrower as contemplated by Section
         9.05(xix), such prepayment shall be accompanied by a prepayment of
         Tranche A Term Loans by the U.S. Borrower in such amount so that the
         voluntary prepayments of Term Loans at such time is made on a pro rata
         basis (based upon the TL Repayment Percentages of each such Tranche of
         Term Loans and the then outstanding principal amounts of each such
         Tranche of Term Loans).

                  4.02 Mandatory Repayments and Commitment Reductions. (a) (i)
If on any date the Aggregate Multicurrency Facility RL Exposure exceeds the
Total Multicurrency Facility Revolving Loan Commitment as then in effect, the
Bermuda Borrower shall prepay on such date the principal of outstanding
Multicurrency Facility Swingline Loans and/or the principal of outstanding
Multicurrency Facility Revolving Loans in an amount (in the case of payments
made with respect to Euro Denominated Loans, taking the Dollar Equivalent of the
amounts paid in Euros in which payments on such Loans are owing) equal to such
excess. If, after giving effect to the prepayment of all outstanding
Multicurrency Facility Swingline Loans and Multicurrency Facility Revolving
Loans, the aggregate amount of the Multicurrency Facility Letter of Credit
Outstandings and Bank Guaranty Outstandings exceeds the Total Multicurrency
Facility Revolving Loan Commitment as then in effect, the Bermuda Borrower
agrees to pay to the Administrative Agent at the Payment Office on such date an
amount of cash or Cash Equivalents (in Dollars or in the respective currencies
in which the Multicurrency Facility Letter of Credit Outstandings or Bank
Guaranty Outstandings are denominated) equal to the amount of such excess (up to
a maximum amount equal to the sum of the Multicurrency Facility Letter of Credit
Outstandings and Bank Guaranty Outstandings at such time), such cash or Cash
Equivalents to

                                      -57-



be held as security for all obligations of the Bermuda Borrower hereunder in a
cash collateral account to be established by the Administrative Agent.

                  (ii)     If on any date the Aggregate Dollar Facility RL
Exposure exceeds the Total Dollar Facility Revolving Loan Commitment as then in
effect, the U.S. Borrower shall prepay on such date the principal of outstanding
U.S. Borrower Dollar Facility Revolving Loans and/or U.S. Borrower Dollar
Facility Swingline Loans, and/or the Bermuda Borrower shall prepay on such date
the principal of outstanding Bermuda Borrower Dollar Facility Revolving Loans
and/or Bermuda Borrower Dollar Facility Swingline Loans, in an amount equal to
such excess (with such repayment of Dollar Facility Revolving Loans and Dollar
Facility Swingline Loans to be allocated among U.S. Borrower Dollar Facility
Revolving Loans, U.S. Borrower Dollar Facility Swingline Loans, Bermuda Borrower
Dollar Facility Revolving Loans and Bermuda Borrower Dollar Facility Swingline
Loans as the Borrowers may elect). If, after giving effect to the prepayment of
all outstanding Dollar Facility Swingline Loans and Dollar Facility Revolving
Loans, the aggregate amount of the Dollar Facility Letter of Credit Outstandings
exceeds the Total Dollar Facility Revolving Loan Commitment as then in effect,
the U.S. Borrower agrees (as to U.S. Borrower Dollar Facility Letters of
Credit), and the Bermuda Borrower agrees (as to Bermuda Borrower Dollar Facility
Letters of Credit), to pay to the Administrative Agent at the appropriate
Payment Office on such date an amount of cash or Cash Equivalents (in Dollars)
equal to the amount of such excess (up to a maximum amount equal to (x) in the
case of the U.S. Borrower, the Dollar Facility Letter of Credit Outstandings
with respect to U.S. Borrower Dollar Facility Letters of Credit at such time and
(y) in the case of the Bermuda Borrower, the Dollar Facility Letter of Credit
Outstandings with respect to Bermuda Borrower Dollar Facility Letters of Credit
at such time), such cash or Cash Equivalents to be held as security for all
obligations of the U.S. Borrower or the Bermuda Borrower, as the case may be,
hereunder in a cash collateral account to be established by the Administrative
Agent.

                  (b)      (i) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date set forth
below, the U.S. Borrower shall be required to repay that principal amount of
Tranche A Term Loans, to the extent then outstanding, as is set forth opposite
such date (each such repayment, as the same may be reduced as provided in
Sections 4.01 and 4.02(h), a "Tranche A Term Loan Scheduled Repayment"):



          Tranche A Scheduled Repayment Date                            Amount
          ----------------------------------                            ------
                                                                  
Last day of 2nd Fiscal Quarter of Fiscal Year 2003                   $  5,000,000
Last day of 3rd Fiscal Quarter of Fiscal Year 2003                   $  5,000,000
Last day of 4th Fiscal Quarter of Fiscal Year 2003                   $  5,000,000

Last day of 1st Fiscal Quarter of Fiscal Year 2004                   $  5,000,000
Last day of 2nd Fiscal Quarter of Fiscal Year 2004                   $  5,000,000
Last day of 3rd Fiscal Quarter of Fiscal Year 2004                   $  5,000,000
Last day of 4th Fiscal Quarter of Fiscal Year 2004                   $  5,000,000

Last day of 1st Fiscal Quarter of Fiscal Year 2005                   $  5,000,000
Last day of 2nd Fiscal Quarter of Fiscal Year 2005                   $  5,000,000
Last day of 3rd Fiscal Quarter of Fiscal Year 2005                   $  5,000,000


                                      -58-





          Tranche A Scheduled Repayment Date                            Amount
          ----------------------------------                            ------
                                                                  
Last day of 4th Fiscal Quarter of Fiscal Year 2005                   $  5,000,000

Last day of 1st Fiscal Quarter of Fiscal Year 2006                   $  5,000,000
Last day of 2nd Fiscal Quarter of Fiscal Year 2006                   $  5,000,000
Last day of 3rd Fiscal Quarter of Fiscal Year 2006                   $  5,000,000
Last day of 4th Fiscal Quarter of Fiscal Year 2006                   $  5,000,000

Last day of 1st Fiscal Quarter of Fiscal Year 2007                   $  5,000,000
Last day of 2nd Fiscal Quarter of Fiscal Year 2007                   $  5,000,000
Last day of 3rd Fiscal Quarter of Fiscal Year 2007                   $  5,000,000
Last day of 4th Fiscal Quarter of Fiscal Year 2007                   $  5,000,000

Tranche A Term Loan Maturity Date                                    $155,000,000


                  (ii)     In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date set forth
below, the Bermuda Borrower shall be required to repay that principal amount of
Tranche B Term Loans, to the extent then outstanding, as is set forth opposite
such date (each such repayment, as the same may be reduced as provided in
Sections 4.01 and 4.02(h), a "Tranche B Term Loan Scheduled Repayment"):



      Tranche B Scheduled Repayment Date                               Amount
      ----------------------------------                               ------
                                                                 
Last day of 2nd Fiscal Quarter of Fiscal Year 2003                  $  9,000,000
Last day of 3rd Fiscal Quarter of Fiscal Year 2003                  $  9,000,000
Last day of 4th Fiscal Quarter of Fiscal Year 2003                  $  9,000,000

Last day of 1st Fiscal Quarter of Fiscal Year 2004                  $ 14,000,000
Last day of 2nd Fiscal Quarter of Fiscal Year 2004                  $ 14,000,000
Last day of 3rd Fiscal Quarter of Fiscal Year 2004                  $ 14,000,000
Last day of 4th Fiscal Quarter of Fiscal Year 2004                  $ 14,000,000

Last day of 1st Fiscal Quarter of Fiscal Year 2005                  $ 14,000,000
Last day of 2nd Fiscal Quarter of Fiscal Year 2005                  $ 14,000,000
Last day of 3rd Fiscal Quarter of Fiscal Year 2005                  $ 14,000,000
Last day of 4th Fiscal Quarter of Fiscal Year 2005                  $ 14,000,000

Last day of 1st Fiscal Quarter of Fiscal Year 2006                  $ 14,000,000
Last day of 2nd Fiscal Quarter of Fiscal Year 2006                  $ 14,000,000
Last day of 3rd Fiscal Quarter of Fiscal Year 2006                  $ 14,000,000
Last day of 4th Fiscal Quarter of Fiscal Year 2006                  $ 14,000,000

Last day of 1st Fiscal Quarter of Fiscal Year 2007                  $ 14,000,000
Last day of 2nd Fiscal Quarter of Fiscal Year 2007                  $ 14,000,000
Last day of 3rd Fiscal Quarter of Fiscal Year 2007                  $ 14,000,000


                                      -59-





        Tranche B Scheduled Repayment Date                             Amount
        ----------------------------------                             ------
                                                                 
Last day of 4th Fiscal Quarter of Fiscal Year 2007                  $ 14,000,000

Last day of 1st Fiscal Quarter of Fiscal Year 2008                  $ 14,000,000
Last day of 2nd Fiscal Quarter of Fiscal Year 2008                  $155,000,000

Tranche B Term Loan Maturity Date                                   $155,000,000


                  (c)      In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date on or after
the Effective Date upon which Holdings or any of the its Subsidiaries receives
Net Sale Proceeds from any Asset Sale, an amount equal to 100% of the Net Sale
Proceeds from such Asset Sale shall be applied as a mandatory repayment and/or
commitment reduction in accordance with the requirements of Sections 4.02(h) and
(i); provided that (i) with respect to Net Sale Proceeds (other than (x) Net
Sale Proceeds from any Contemplated Asset Sale consummated in accordance with
the requirements of Section 8.22 and (y) any Net Sale Proceeds from the sale of
any Principal Property pursuant to Section 9.02(xix)) received by Holdings or
any of its Subsidiaries in any Fiscal Year of Holdings not to exceed (in the
aggregate) $25,000,000, such Net Sale Proceeds shall not give rise to a
mandatory repayment and/or commitment reduction on such date as otherwise
required above, so long as no Specified Default and no Event of Default exists
at the time such Net Sale Proceeds are received and an Authorized Officer of
Holdings or the 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 within 360 days following the date of receipt of
such Net Sale Proceeds from such Asset Sale (which certificate shall set forth
the estimates of the proceeds to be so expended); provided, however, that (I) if
all or any portion of such Net Sale Proceeds are not so used within such 360-day
period (or contractually committed within such period to be used), such
remaining portion shall be applied on the last day of such period as a mandatory
repayment as provided above (without giving effect to the immediately preceding
proviso) and (II) if all or any portion of such Net Sale Proceeds are not
required to be applied on the last day of such 360-day period referred to in
clause (I) of this proviso because such amount is contractually committed within
such period to be used and then either (A) subsequent to such date such contract
is terminated or expires without such portion being so used or (B) such
contractually committed portion is not so used within six months after the last
day of such 360-day period referred to in clause (I) of this proviso, such
remaining portion, in the case of either of the preceding clauses (A) or (B),
shall be applied as a mandatory repayment as provided above (without giving
effect to the immediately preceding proviso). Notwithstanding anything to the
contrary contained in this Section 4.02(c), (x) if the New Senior Notes
Documents or Existing Senior Notes Documents permit a lesser amount to be
reinvested, or have a shorter reinvestment period, than is provided above with
respect to any Asset Sales, then such lesser permitted reinvestment amount,
and/or shorter reinvestment period, as the case may be, shall be applicable for
purposes of this Section 4.02(c) so long as the New Senior Notes or such
Existing Senior Notes, as the case may be, remain outstanding, and (y) in no
event shall Holdings or any of its Subsidiaries use any proceeds from any Asset
Sale to make any voluntary or mandatory repayment or prepayment of New Senior
Notes or Existing Senior Notes and, before any such obligation to use such
proceeds to make such repayment shall arise, Holdings or the respective
Subsidiary shall reinvest the respective

                                      -60-



amounts as permitted above in this Section 4.02(c) or apply such proceeds as a
mandatory prepayment in accordance with requirements of Sections 4.02(h) and
(i).

                  (d)      In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date on or after
the Effective Date on which Holdings or any of its Subsidiaries receives any
cash proceeds from (i) any incurrence of Indebtedness (other than Indebtedness
permitted to be incurred pursuant to Section 9.04 as in effect on the Effective
Date), (ii) any issuance of Equity Interests (other than Holdings Common Stock
or options, rights or warrants therefor) by Holdings or (iii) any issuance of
capital stock or other Equity Interests by, or cash capital contributions to,
any Subsidiary of Holdings (other than (x) issuances of common Equity Interests
to Holdings or any other Subsidiary of Holdings by Holdings or any other
Subsidiary of Holdings, and (y) cash capital contributions to any Subsidiary of
Holdings by Holdings or any Subsidiary of Holdings), an amount equal to 100% of
the Net Cash Proceeds of the respective incurrence of Indebtedness, issuance of
Equity Interests or cash capital contribution shall be applied as a mandatory
repayment in accordance with the requirements of Sections 4.02(h) and (i).

                  (e)      In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each date after the
Initial Borrowing Date on which Holdings or any of its Subsidiaries receives any
cash proceeds from any sale or issuance of Holdings Common Stock (including from
the sale or issuance of options, warrants or rights to purchase any such equity)
by, or cash capital contributions to, Holdings (including any contribution made
pursuant to the Capital Call Agreement but excluding proceeds received from (i)
the Common Equity Financing and (ii) the sale or issuance by Holdings of shares
of its common stock (including as a result of the exercise of any options or
warrants with regard thereto), or options or warrants to purchase shares of its
common stock, to any employee, officer or director of Holdings or any of its
Subsidiaries in an aggregate amount (for all such sales and issuances) not to
exceed $2,000,000 in any Fiscal Year of Holdings), an amount equal to the
Applicable Prepayment Percentage of such cash proceeds (net of all underwriting
discounts, fees and commissions and other costs and expenses associated
therewith) of the respective equity issuance or capital contribution shall be
applied as a mandatory repayment and/or commitment reduction in accordance with
the requirements of Sections 4.02(h) and (i).

                  (f)      In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, within 10 days following
each date on or after the Effective Date on which Holdings or any of its
Subsidiaries receives any proceeds from any Recovery Event (other than proceeds
from Recovery Events in an amount less than $2,500,000 per Recovery Event), an
amount equal to 100% of the proceeds of such Recovery Event (net of reasonable
costs (including, without limitation, legal costs and expenses) and taxes
incurred in connection with such Recovery Event and the amount of such proceeds
required to be used to repay any Indebtedness (other than Indebtedness of the
Lenders pursuant to this Agreement) which is secured by the respective assets
subject to such Recovery Event) shall be applied as a mandatory repayment and/or
commitment reduction in accordance with the requirements of Sections 4.02(h) and
(i); provided that so long as no Specified Default and no Event of Default then
exists and such proceeds do not exceed $25,000,000, such proceeds shall not be
required to be so applied on such date to the extent that an Authorized Officer
of Holdings or the U.S. Borrower has delivered a certificate to the
Administrative Agent on or prior to such date stating that such

                                      -61-



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

                  (g)      In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each Excess Cash Payment
Date, an amount equal to the Applicable Prepayment Percentage of the Excess Cash
Flow for the relevant Excess Cash Flow Payment Period shall be applied as a
mandatory repayment and/or commitment reduction in accordance with the
requirements of Sections 4.02(h) and (i).

                  (h)      (I) Each amount required to be applied pursuant to
Sections 4.02(c), (d), (e), (f), and (g) in accordance with this Section 4.02(h)
shall, subject to Section 4.02(k), be applied (i) first, to repay the
outstanding principal amount of Term Loans and (ii) second, to the extent in
excess of the amounts required to be applied pursuant to preceding clause (i),
to permanently reduce the Total Revolving Loan Commitment.

                  (II)     Each amount required to be applied to repay
outstanding Term Loans pursuant to this Section 4.02(h) shall, subject to
Section 4.02(k) 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 Term Loans); provided that (i) the Net Sale Proceeds from
any Asset Sale effected by Holdings or any of its Domestic Subsidiaries and
required to be applied to the repayment of Term Loans pursuant to clause (I) of
this Section 4.02(h), shall be applied (x) first, to repay principal of
outstanding Tranche A Term Loans and (y) second, after the repayment in full of
all outstanding Tranche A Term Loans, to repay principal of outstanding Tranche
B Term Loans and (ii) the Net Sale Proceeds from any Asset Sale effected by any
Foreign Subsidiary of Holdings and required to be applied to the repayment of
Term Loans pursuant to clause (I) of this Section 4.02(h), shall be applied (x)
first, to repay principal of outstanding Tranche B Term Loans and (y) second,
after the repayment in full of all outstanding Tranche B Term Loans, to repay
principal of outstanding Tranche A Term Loans.

                  (III)    The amount of each reduction to the Total Revolving
Loan Commitment pursuant to this Section 4.02(h) shall be applied to reduce the
Total Multicurrency Facility Revolving Loan Commitment and the Total Dollar
Facility Revolving Loan on a pro rata basis (based on the relative amounts of
the Total Multicurrency Facility Revolving Loan Commitment

                                      -62-



and the Total Dollar Facility Revolving Loan Commitment in each case as in
effect before giving effect to the respective reduction). In addition, (x) the
amount of any reduction to the Revolving Loan Commitments as provided in
subclause (I)(ii) of this Section 4.02(h) above shall be deemed to be an
application of proceeds for purposes of this Section 4.02(h) even though cash
may not be required to actually be applied, (y) in connection with any reduction
to the Total Revolving Loan Commitment, any cash received by Holdings or any
Subsidiary of the U.S. Borrower in connection with the event giving rise to such
reduction will be retained by such Person, except to the extent that such cash
is otherwise required to be applied as provided in Section 4.02(a) as a result
of any such reduction to the Total Revolving Loan Commitment and (z) each
reduction to the Total Multicurrency Facility Revolving Loan Commitment or the
Total Dollar Facility Revolving Loan Commitment shall apply to reduce the
respective underlying Commitments of the Lenders on a pro rata basis as provided
in Section 3.03(f).

                  (IV)     All repayments of outstanding Term Loans pursuant to
Section 4.02(c) shall be applied (x) at any time prior to the satisfaction in
full of the obligations of the U.S. Borrower and its Subsidiaries to effect
Contemplated Asset Sales pursuant to Section 8.22, to reduce the then remaining
Scheduled Repayments of the respective Tranche of Term Loans in inverse order of
maturity (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) and (y) at any time thereafter, 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).
All repayments of outstanding Term Loans pursuant to Section 4.02(d), (e), (f)
or (g) 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).

                  (i)      With respect to each repayment of Loans required by
this Section 4.02, the respective Borrower may (subject to the requirements of
preceding clause (h)) designate the Types of Loans of the respective Tranche
which are to be repaid and, in the case of Euro Rate Loans (other than Swingline
Loans), the specific Borrowing or Borrowings of the respective Tranche pursuant
to which made, provided that: (i) in the case of repayments of Euro Rate Loans
(other than Swingline Loans), repayments of such Loans pursuant to this Section
4.02 on any day other than the last day of an Interest Period applicable thereto
shall be accompanied by payment by the respective Borrower of all amounts owing
in connection therewith pursuant to Section 1.11; (ii) if any repayment of Euro
Rate Loans (other than Swingline Loans) made pursuant to a single Borrowing
shall reduce the outstanding Euro Rate Loans made pursuant to such Borrowing to
an amount less than the Minimum Borrowing Amount applicable to the respective
Euro Rate Loans, such Borrowing (x) in the case of Eurodollar Loans, shall be
converted at the end of the then current Interest Period into a Borrowing of
Base Rate Loans and (y) in the case of Euro Denominated Revolving Loans, shall
be repaid in full at the end of the then current Interest Period; and (iii)
except as provided in Section 4.02(k), 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 respective 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.

                                      -63-



                  (j)      Notwithstanding anything to the contrary contained
elsewhere in this Agreement, (i) all then outstanding Swingline Loans shall be
repaid in full on the Swingline Expiry Date, (ii) all other then outstanding
Loans shall be repaid in full on the respective Maturity Date for such Loans and
(iii) unless the Required Lenders shall otherwise agree in writing in their sole
discretion, all outstanding Loans shall be repaid in full upon the occurrence of
a Change of Control.

                  (k)      Notwithstanding anything to the contrary contained
above in this Section 4.02, with respect to any mandatory repayments of Tranche
B Term Loans (excluding Scheduled Repayments, repayments pursuant to Section
4.02(c) with the Net Sale Proceeds from Asset Sales effected by any Foreign
Subsidiary of Holdings and repayments pursuant to Section 4.02(j)) otherwise
required above pursuant to this Section 4.02, if on or prior to the date the
respective mandatory repayment is otherwise required to be made pursuant to this
Section 4.02, the Bermuda Borrower has given the Administrative Agent written
notification that the Bermuda Borrower has elected to give each Lender with a
Tranche B Term Loan the right to waive such Lender's rights to receive such
repayment (each, a "Waivable Repayment"), the Administrative Agent shall, unless
the then outstanding Tranche A Term Loans shall be repaid in full with the share
of the respective mandatory repayment allocable thereto (before giving effect to
any additional reallocation thereto pursuant to this clause (k)) in accordance
with the relevant provisions of Section 4.02, promptly notify each Lender with a
Tranche B Term Loan of (x) such receipt, (y) the amount of the repayment to be
applied to such Lender's Tranche B Term Loans and (z) the maximum aggregate
amount of the respective Waivable Repayment which can be waived by the holders
of Tranche B Term Loans (the "Maximum Waivable Amount"), which shall be equal to
the lesser of (i) the aggregate amount of the Waivable Repayment required, in
the absence of this Section 4.02(k), to be applied to the repayment of
outstanding Tranche B Term Loans and (ii) the aggregate principal amount of
Tranche A Term Loans which will be outstanding after giving effect to the
application of the amounts then required to be applied to the repayment of such
Tranche A Term Loans pursuant to the provisions of Section 4.02, before giving
effect to the provisions of this clause (k). In the event any such Lender with a
Tranche B Term Loan desires to waive such Lender's right to receive its share
any such Waivable Repayment, in whole or in part, such Lender shall so advise
the Administrative Agent no later than 5:00 P.M. (New York time) five Business
Days after the date of such notice from the Administrative Agent which notice
shall also include the amount the Lender desires to receive. If the Lender does
not reply to the Administrative Agent within such five Business Day period, it
will be deemed acceptance of the total payment. If the Lender does not specify
an amount it wishes to receive, it will be deemed acceptance of 100% of the
total payment. In the event that any such Lender waives such Lender's right to
any such Waivable Repayment, the Administrative Agent shall apply 100% of the
amounts so waived by such Lenders to prepay the Tranche A Term Loans in
accordance with Sections 4.02(h) and (i) (for this purpose, deeming the TL
Repayment Percentage of the Tranche B Term Loans to be 0%); provided that if the
amounts so waived by the Lenders as described above would exceed the Maximum
Waivable Amount, the amount waived by each Lender shall be reduced
proportionally (based on the amounts waived by each Lender) to the extent needed
so that the aggregate of the amounts so waived shall not exceed the Maximum
Waivable Amount. If the Bermuda Borrower elects to give the notice described
above in this Section 4.02(k) with respect to any mandatory repayment, the
amount of the respective Waivable Repayment shall be deposited with the
Administrative Agent on the date the mandatory repayment would otherwise be
required pursuant to the relevant

                                      -64-



provisions of this Section 4.02 (and held by the Administrative Agent as cash
collateral for the Tranche B Term Loans, and, but only to the extent Lenders
with Tranche B Term Loans waive their right to receive their share of the
Waivable Repayment, for the benefit of the Tranche A Term Loans, in a cash
collateral account until the proceeds are applied to the applicable Loans) and
the respective repayment shall not be required to be made until the seventh
Business Day occurring after the date the respective repayment would otherwise
have been required to be made. Notwithstanding anything to the contrary
contained above, (i) if one or more Lenders holding Tranche B Term Loans waives
its right to receive all or any part of any Waivable Repayment, but less than
all the Lenders holding the Tranche B Term Loans waive in full their right to
receive 100% of the total payment otherwise required with respect to the Tranche
B Term Loans, then of the amount actually applied to the repayment of the
Tranche B Term Loans of Lenders which have waived in part, but not in full,
their right to receive 100% of such repayment, such amount shall be applied to
each then outstanding Borrowing of the Tranche B Term Loans on a pro rata basis
(so that each Lender holding Tranche B Term Loans shall, after giving effect to
the application of the respective repayment, maintain the same percentage (as
determined for such Lender, but not the same percentage as the other Lenders
hold and not the same percentage held by such Lender prior to repayment) of each
Borrowing of Tranche B Term Loans which remains outstanding after giving effect
to such application), and (ii) the right of the Lenders holding Tranche B Term
Loans to waive their right to receive any mandatory repayments pursuant to this
Section 4.02(k) shall only be applicable so long as any Tranche A Term Loans are
outstanding at the time of such mandatory repayment, and such right shall exist
only to the extent of outstanding Tranche A Term Loans (after giving effect to
any prior or concurrent repayment of Tranche A Term Loans).

                  (l)      Notwithstanding anything to the contrary contained
above, all payments owing with respect to each Tranche pursuant to this Section
4.02 shall be made in the respective currency or currencies in which the
respective obligations are owing in accordance with the terms of this Agreement.
For purposes of making calculations pursuant to this Section 4.02, the
Administrative Agent shall be entitled to use the Dollar Equivalent or Euro
Equivalent, as the case may be, of any such amounts required to be converted
into other currencies for purposes of making determinations pursuant to this
Section 4.02.

                  4.03 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement or any Note
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 (x) Dollars in immediately available funds at the
Payment Office of the Administrative Agent in respect of any obligation of the
Borrowers under this Agreement except as otherwise provided in the immediately
following clause (y) and (y) Euros in immediately available funds at the Payment
Office of the Administrative Agent, if such payment is made in respect of (i)
principal of or interest on Euro Denominated Loans, (ii) Letter of Credit Fees,
Facing Fees and Unpaid Drawings (and interest thereon) in respect of Euro
Denominated Letters of Credit at any time prior to the occurrence of a Sharing
Event, (iii) Bank Guaranty Fees and Unreimbursed Payments (and interest thereon)
in respect of Euro Denominated Bank Guaranties at any time prior to the
occurrence of a Sharing Event or (iv) any increased costs, indemnities or other
amounts owing with respect to Euro Denominated Loans (or Commitments relating
thereto), Euro Denominated Letters of Credit or Euro Denominated Bank Guaranties
at any time prior to the occurrence of a Sharing Event. The Administrative

                                      -65-



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 the 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 or under any
Note shall be stated to be due on a day which is not a Business Day, the due
date thereof shall be extended to the next succeeding Business Day and, with
respect to payments of principal, interest shall be payable at the applicable
rate during such extension.

                  4.04 Net Payments. (a) All payments made by any Credit Party
under any Credit Document (including, in the case of Holdings or the U.S.
Borrower, in its capacity as a guarantor pursuant to Section 14 or 15, as the
case may be) 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 respective 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 respective Borrower (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 Credit Agreement Parties 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.

                                      -66-



                  (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 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 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 Borrower agrees to pay additional amounts and to indemnify each
Lender in the manner set forth

                                      -67-



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 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. Conditions Precedent to Credit Events on the
Initial Borrowing Date. The obligation of each Lender to make each Loan
hereunder, the obligation of each Issuing Lender to issue each Letter of Credit
hereunder and the obligation of each Bank Guaranty Issuer to issue each Bank
Guaranty hereunder, in any case on the Initial Borrowing Date, is subject, at
the time of the making of such Loans, the issuance of such Letters of Credit and
the issuance of such Bank Guaranties to the satisfaction of the following
conditions:

                  5.01 Execution of Agreement; Notes. On or prior to the Initial
Borrowing Date, (i) the Effective Date shall have occurred and (ii) there shall
have been delivered to the Administrative Agent for the account of each Lender
which has requested the same the appropriate Tranche A Term Note, Tranche B Term
Note, Multicurrency Facility Revolving Note, U.S. Borrower Dollar Facility
Revolving Note and/or Bermuda Borrower Dollar Facility Revolving Note and to the
Swingline Lender, if so requested by it, the Multicurrency Facility Swingline
Note, the U.S. Borrower Dollar Facility Swingline Note and the Bermuda Borrower
Dollar Facility Swingline Note, in each case executed by the relevant Borrower
and in the amount, maturity and as otherwise provided herein.

                  5.02 Officer's Certificate. On the Initial Borrowing Date, the
Administrative Agent shall have received a certificate from the U.S. Borrower,
dated such date and signed by an Authorized Officer of the U.S. Borrower, (x)
certifying that all of the applicable conditions set forth in Sections 5.05
through 5.13, inclusive, and Sections 6A.01 and 6B.01 (other than such
conditions that are expressly subject to the satisfaction of the Agents and/or
the Required Lenders), have been satisfied on such date and (y) containing the
representation and warranty set forth in Section 7.26.

                  5.03 Opinions of Counsel. On the Initial Borrowing Date, the
Administrative Agent shall have received (i) from Paul, Hastings, Janofsky &
Walker LLP, special counsel to the Credit Parties, an opinion addressed to each
Agent, the Collateral Agent and each of the Lenders and dated the Initial
Borrowing Date substantially in the form of Exhibit E-1, (ii) from Appleby,
Spurling & Kempe, special Bermuda counsel to the Credit Parties organized under
the laws of Bermuda, an opinion addressed to each Agent, the Collateral Agent
and each of the Lenders and dated the Initial Borrowing Date substantially in
the form of Exhibit E-2, (iii) from foreign counsel to the Credit Parties and/or
the Agents in each Qualified Non-U.S. Jurisdiction, Germany, Italy, Japan,
Turkey, Colombia, Costa Rica, Honduras and the Philippines, in each case
reasonably satisfactory to the Agents, opinions which shall (x) be addressed to
each Agent, the Collateral Agent and each of the Lenders and be dated the
Initial Borrowing Date, (y) cover various matters regarding the execution,
delivery and performance of the Credit Documents to which Subsidiaries of
Holdings organized in the relevant such jurisdiction are party, the perfection
and priority of security interests granted by Credit Parties organized in such

                                      -68-



jurisdiction or granted in respect of entities organized in such jurisdiction,
and/or such other matters incident to the transactions contemplated herein as
the Agents may reasonably request and (z) be in form, scope and substance
reasonably satisfactory to the Agents, (iv) from local counsel to the U.S.
Credit Parties and/or the Agents reasonably satisfactory to the Agents
practicing in those jurisdictions in which U.S. Mortgaged Properties are located
and/or U.S. Subsidiary Guarantors are organized, such opinions as the Agents may
reasonably request, which opinions (x) shall be addressed to each Agent, the
Collateral Agent and each of the Lenders and be dated the Initial Borrowing
Date, (y) shall cover the perfection of the security interests granted pursuant
to the relevant Security Documents and such other matters incident to the
transactions contemplated herein as the Agents may reasonably request and (z)
shall be in form and substance reasonably satisfactory to the Agents, and (v)
reliance letters addressed to each Agent, the Collateral Agent and each of the
Lenders and dated the Initial Borrowing Date with respect to such legal opinions
delivered in connection with the Acquisition, as may have been requested by any
Agent or the Required Lenders, which reliance letters and opinions shall cover
such matters as the Agents may reasonably request and be in form, scope and
substance reasonably satisfactory to the Agents.

                  5.04 Company Documents; Proceedings. (a) On the Initial
Borrowing Date, the Administrative Agent shall have received from each Credit
Agreement Party and each U.S. Subsidiary Guarantor a certificate, dated the
Initial Borrowing Date, signed by the chairman, a vice-chairman, the president
or any vice-president of such Credit Party, and attested to by the secretary,
any assistant secretary or other senior officer of such Credit Party, in the
form of Exhibit F with appropriate insertions, together with copies of the
certificate of incorporation, by-laws or equivalent organizational documents of
such Credit Party and the resolutions of such Credit Party referred to in such
certificate (and, in the case of the certificate from the U.S. Borrower,
together with copies of the certificates of incorporation, by-laws or equivalent
organizational documents of each Foreign Subsidiary of Holdings (x) which is a
Subsidiary Guarantor or (y) in respect of which security interests are being
granted by a Subsidiary Guarantor), and all of the foregoing (including each
such certificate of incorporation, by-laws or other organizational document)
shall be reasonably satisfactory to the Agents.

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

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

                                      -69-



                  5.05 Adverse Change, etc. On the Initial Borrowing Date,
nothing shall have occurred since December 28, 2002 (and the Agents and Lenders
shall have become aware of no facts, conditions or other information not
previously known) which any Agent or the Required Lenders shall reasonably
determine has had, or could reasonably be likely to have, (i) a Material Adverse
Effect or (ii) material adverse effect on the Transaction.

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

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

                  5.08 Consummation of the Acquisition, etc. (a) On the Initial
Borrowing Date, the Acquisition shall have been consummated in all material
respects in accordance with the Acquisition Documents and all applicable laws.
On the Initial Borrowing Date, (x) the Administrative Agent shall have received
true and correct copies of all Acquisition Documents, certified as such by an
appropriate officer of Holdings, (y) all Acquisition Documents, and all terms
and conditions thereof, shall be in form and substance reasonably satisfactory
to the Agents and the Required Lenders and (z) all Acquisition Documents shall
be in full force and effect. Each of the conditions precedent to the
consummation of the Acquisition as set forth in the Acquisition Documents shall
have been satisfied and not waived, except with the consent of the Agents and
the Required Lenders, to the reasonable satisfaction of the Agents and the
Required Lenders.

                  (b)      Subject to Section 13.19, on the Initial Borrowing
Date, (i) the Bermuda Partnership shall have acquired substantially all of the
legal and beneficial ownership of Foreign Subsidiaries of the U.S. Borrower (as
same existed immediately before giving effect to the Acquisition) (such
acquisition and related transactions being herein referred to collectively as
the "Foreign Asset Transfer"), (ii) the Foreign Asset Transfer shall have been
consummated in all

                                      -70-



material respects in accordance with the Foreign Asset Transfer Documents and
all applicable laws, (iii) the Administrative Agent shall have received true and
correct copies of all Foreign Asset Transfer Documents, certified as such by an
appropriate officer of the U.S. Borrower, (iv) all such Foreign Asset Transfer
Documents, and all terms and conditions thereof, shall be in form and substance
reasonably satisfactory to the Agents and the Required Lenders and (v) all such
Foreign Asset Transfer Documents shall be in full force and effect. After giving
effect to the Transaction, the organizational structure of Holdings and its
Subsidiaries is accurately set forth on Schedule XII.

                  5.09 Common Equity Financing; etc. (a) On or prior to the
Initial Borrowing Date, (i) Holdings shall have received cash proceeds of at
least $125,000,000 from a capital contribution by the Equity Investors to
Holdings (the "Common Equity Financing"), (ii) the U.S. Borrower shall have
received cash proceeds of $475,000,000 from the issuance by it of a like
principal amount of New Senior Notes, (iii) the U.S. Borrower and its
Subsidiaries shall have received gross cash proceeds from the consummation of
the Sale-Leaseback Transactions in such amount as may be required to satisfy the
requirements of Section 5.12, (iv) Holdings shall have contributed the full
amount of the Common Equity Financing as a common equity contribution to
Acquisition Corp. (the "Holdings Equity Contribution"), (v) the U.S. Borrower
shall have caused its Subsidiaries to make intercompany loans and/or dividends
to its and their respective parent companies in amounts and on terms reasonably
satisfactory to the Agents (the "Internally-Sourced Intercompany Distributions")
and (vi) Holdings shall have utilized (and caused its Subsidiaries to utilize)
the full amount of the cash proceeds received by them as provided in preceding
clauses (i) through (v) to make payments owing in connection with the
Transaction prior to the utilization by either Borrower of any proceeds of Loans
for such purpose.

                  (b)      On the Initial Borrowing Date (after giving effect to
the transactions described in preceding clause (a)), the U.S. Borrower shall
(subject to Section 7.05(a)) have caused its Subsidiaries to utilize all or a
portion of the proceeds of the Tranche B Term Loans incurred by the Bermuda
Borrower to make intercompany loans and/or dividends to its and their respective
parent companies or affiliates in amounts and on terms reasonably satisfactory
to the Lenders (the "Loan-Sourced Intercompany Distributions" and, together with
the Internally-Sourced Intercompany Distributions, the "Intercompany
Distribution Transactions").

                  (c)      On the Initial Borrowing Date, each of the Common
Equity Financing, the Holdings Equity Contribution, the issuance of the New
Senior Notes, the Sale-Leaseback Transaction and the Intercompany Distribution
Transactions shall have been consummated in accordance with the terms and
conditions of the applicable Documents therefor and all applicable law. On the
Initial Borrowing Date, (x) the Administrative Agent shall have received true
and correct copies of all Common Equity Financing Documents, all New Senior
Notes Documents, all Sale-Leaseback Transaction Documents and all Intercompany
Distribution Transaction Documents, certified as such by an appropriate officer
of Holdings, (y) all such Documents and all terms and conditions thereof
(including, without limitation, in the case of the New Senior Notes Documents,
amortization, maturities, interest rates, covenants, defaults, remedies,
pay-in-kind limitations, guaranties, guarantors and subordination provisions)
shall be in form and substance reasonably satisfactory to each Agent and the
Required Lenders and (z) all such Documents shall be in full force and effect.
All conditions precedent to the consummation of the Common Equity Financing, the
issuance of the New Senior Notes, the Sale-Leaseback

                                      -71-



Transaction and the Intercompany Distribution Transactions as set forth in the
relevant Documents therefor shall have been satisfied, and not waived unless
consented to by each Agent and the Required Lenders, to the reasonable
satisfaction of each Agent and the Required Lenders.

                  (d)      The Administrative Agent shall have received
evidence, in form, scope and substance reasonably satisfactory to it, that the
matters set forth in this Section 5.09 have been satisfied as of the Initial
Borrowing Date.

                  5.10 Amendments to Existing Senior Notes Documents, etc. On
the Initial Borrowing Date, (i) the U.S. Borrower and the trustee for the
Existing Senior Notes (other than the Existing Senior Notes To Be Refinanced)
shall have duly executed and delivered a supplement to each of the Existing 2009
Senior Notes Indenture and the Existing 2013 Senior Notes Indenture
(collectively, the "Existing Senior Notes Indenture Supplement"), which
supplement shall provide for, inter alia, (I) an increase in the interest rate
applicable to the such Existing Senior Notes to the rate to be substantially the
same as the rate applicable to the New Senior Notes, (II) senior subordinated
guaranties of such Existing Senior Notes from Wholly-Owned Domestic Subsidiaries
of the U.S. Borrower which provide guaranties of the New Senior Notes and (III)
the addition of certain covenants included in the New Senior Notes Indenture,
(ii) the Administrative Agent shall have received true and correct copies of the
Existing Senior Notes Indenture Supplement, certified as such by appropriate
officer of Holdings, (iii) the Existing Senior Notes Indenture Supplement, and
all terms and conditions thereof, shall be in form and substance reasonably
satisfactory to the Agents and the Required Lenders and (iv) the Existing Senior
Notes Indenture Supplement shall have become effective in accordance with its
terms and the terms of the Existing 2009 Senior Notes Indenture or the Existing
2013 Senior Notes Indenture, as the case may be.

                  5.11 Initial Refinancing. (a) On the Initial Borrowing Date,
the U.S. Borrower shall have (i) furnished an irrevocable notice of redemption
with respect to the Existing 2005 Senior Notes pursuant to, and in accordance
with the requirements of, the Existing 2005 Senior Notes Documents, (ii)
defeased or otherwise discharged the Existing 2003 Senior Notes pursuant to, and
in accordance with the requirements of, the Existing 2003 Senior Notes Documents
on terms reasonably satisfactory to the Agents, and (iii) placed funds in escrow
with the respective trustees for the Existing Senior Notes To Be Refinanced in
an amount sufficient to effect the Post-Closing Refinancing, all in accordance
with the requirements of the relevant Existing Senior Notes Documents.

                  (b)      On the Initial Borrowing Date, the total commitments
in respect of the Initial Indebtedness to be Refinanced shall have been
terminated, and all loans with respect thereto shall have been repaid in full,
together with interest thereon, all letters of credit and bank guaranties issued
thereunder shall have been terminated (or, in the case of Existing Letters of
Credit and Existing Bank Guaranties, incorporated as Letters of Credit or Bank
Guaranties hereunder, as the case may be, as contemplated by Section 2A.01(d) or
2B.01(d), as the case may be) and all other amounts owing pursuant to the
Initial Indebtedness to be Refinanced shall have been repaid in full and all
documents in respect of the Initial Indebtedness to be Refinanced and all
guarantees with respect thereto shall have been terminated (except as to
indemnification provisions contained therein which by their express terms are
intended to survive such termina-

                                      -72-



tion and as are reasonably satisfactory to the Administrative Agent and the
Required Lenders) and be of no further force and effect.

                  (c)      On the Initial Borrowing Date, the creditors in
respect of the Initial Indebtedness to be Refinanced shall have terminated and
released all security interests and Liens on the assets owned by Holdings, the
U.S. Borrower and their respective Subsidiaries. The Administrative Agent shall
have received such releases of security interests in and Liens on the assets
owned by Holdings, the U.S. Borrower and their respective Subsidiaries as may
have been requested by the Administrative Agent, which releases shall be in
form, scope and substance reasonably satisfactory to each of the Agents. Without
limiting the foregoing, there shall have been delivered (i) proper termination
statements (Form UCC-3 or the appropriate equivalent) for filing under the UCC
of each jurisdiction where a financing statement (Form UCC-1 or the appropriate
equivalent) was filed with respect to Holdings, the U.S. Borrower or any of
their respective Subsidiaries in connection with the security interests created
with respect to the Initial Indebtedness to be Refinanced and the documentation
related thereto, (ii) termination or reassignment of any security interest in,
or Lien on, any patents, trademarks, copy rights, or similar interests of
Holdings, the U.S. Borrower or any of their respective Subsidiaries on which
filings have been made, (iii) terminations of all mortgages, leasehold
mortgages, deeds of trust and leasehold deeds of trust created with respect to
property of Holdings, the U.S. Borrower or any of their respective Subsidiaries,
in each case, to secure the obligations in respect of the Indebtedness to be
Refinanced, all of which shall be in form, scope and substance reasonably
satisfactory to each of the Agents and (iv) all collateral owned by Holdings,
the U.S. Borrower or any of their respective Subsidiaries in the possession of
any of the creditors in respect of the Initial Indebtedness to be Refinanced or
any collateral agent or trustee under any related security document shall have
been returned to Holdings, the Borrower or such Subsidiary.

                  (d)      The Initial Refinancing shall have been consummated
in all material respects in accordance with the relevant Refinancing Documents
and all applicable laws. On the Initial Borrowing Date, (x) the Administrative
Agent shall have received true and correct copies of all Refinancing Documents,
certified as such by appropriate officer of Holdings, (y) all Refinancing
Documents, and all terms and conditions thereof, shall be in form and substance
reasonably satisfactory to each Agent and the Required Lenders and (z) all
Refinancing Documents shall be in full force and effect. Each of the conditions
precedent to the consummation of the Initial Refinancing as set forth in the
relevant Refinancing Documents shall have been satisfied in all material
respects and not waived, except with the consent of the Administrative Agent, to
the reasonable satisfaction of the Administrative Agent.

                  (e)      The Administrative Agent shall have received evidence
in form, scope and substance reasonably satisfactory to the Agents and the
Required Lenders that the matters set forth in this Section 5.11 have been
satisfied on the Initial Borrowing Date.

                  5.12 Aggregate Funds Needed to Effect Transaction. The U.S.
Borrower shall have fully available cash on hand (after giving effect to the
Intercompany Distribution Transactions) in such aggregate amounts as are needed
to finance the Acquisition and the Refinancing and to pay all fees and expenses
in connection with the Transaction, to the extent such amounts exceed the cash
available for such purposes from the Common Equity Financing,

                                      -73-



the issuance of the New Senior Notes, the consummation of the Sale-Leaseback
Transaction and the incurrence of Loans permitted to be incurred on the Initial
Borrowing Date.

                  5.13 Outstanding Indebtedness and Preferred Equity. On the
Initial Borrowing Date and after giving effect to the consummation of the
Transaction, Holdings and its Subsidiaries shall have no outstanding Preferred
Equity or Indebtedness, except for (i) Indebtedness pursuant to or in respect of
the Credit Documents, (ii) Indebtedness pursuant to the New Senior Notes
Documents, (iii) Indebtedness pursuant to or in respect of the Existing Senior
Notes Documents (other than the Existing Senior Notes to be Refinanced and the
related Existing Senior Notes Documents), (iv) intercompany Indebtedness
incurred by the Bermuda Borrower pursuant to the Intercompany Distribution
Transactions, (v) Intercompany Scheduled Existing Indebtedness, (vi) existing
Indebtedness of Foreign Subsidiaries of the U.S. Borrower of the type described
in 9.04(viii) in an aggregate principal amount not to exceed the principal
amount of such Indebtedness permitted by such Section, (vii) Capitalized Lease
Obligations arising under the lease entered into in connection with the
Sale-Leaseback Transaction, (viii) obligations described in Section 9.04(xxii),
and (ix) such other existing indebtedness of Holdings and its Subsidiaries, if
any, as shall be permitted by the Agents and Required Lenders to remain
outstanding (all of which Indebtedness described in this clause (ix) (other than
immaterial Contingent Obligations of Subsidiaries of the U.S. Borrower that
represent guaranties of obligations other than Indebtedness) shall be required
to be specifically listed as Third Party Scheduled Existing Indebtedness on Part
A of Schedule IV). On and as of the Initial Borrowing Date, all Indebtedness
described in the immediately preceding sentence shall remain outstanding after
giving effect to the Transaction and the other transactions contemplated hereby
without any breach, required repayment, required offer to purchase, default,
event of default or termination rights existing thereunder or arising as a
result of the Transaction and the other transactions contemplated hereby and
there shall not be any amendments or modifications to the Existing Indebtedness
Agreements (other than as contemplated by Section 5.10 or otherwise requested or
approved by the Agents and the Required Lenders). On and as of the Initial
Borrowing Date, the Agents and the Required Lenders shall be satisfied with the
amount of and the terms and conditions of all Indebtedness described above in
this Section 5.13.

                  5.14 Subsidiaries Guaranties; Intercompany Subordination
Agreement; Capital Call Agreement. (a) On the Initial Borrowing Date, each U.S.
Subsidiary Guarantor shall have duly authorized, executed and delivered the U.S.
Subsidiaries Guaranty in the form of Exhibit G-1 (as amended, modified, restated
and/or supplemented from time to time, the "U.S. Subsidiaries Guaranty"),
guaranteeing all of the obligations of each of the Borrowers (or, in the case of
the Bermuda Partnership Partners, the obligations of the U.S. Borrower) as more
fully provided therein, and the U.S. Subsidiaries Guaranty shall be in full
force and effect.

                  (b)      On the Initial Borrowing Date, each Wholly-Owned
Foreign Subsidiary of Holdings (other than the Bermuda Borrower and the
Non-Guarantor Subsidiaries at such time) shall have duly authorized, executed
and delivered the Guaranty in the form of Exhibit G-2 (as amended, modified,
restated and/or supplemented from time to time, the "Foreign Subsidiaries
Guaranty"), guaranteeing all of the obligations of the Bermuda Borrower as more
fully provided therein, and the Foreign Subsidiaries Guaranty shall be in full
force and effect.

                                      -74-



                  (c)      On the Initial Borrowing Date, each Credit Party and
each other Subsidiary of Holdings which is an obligee or obligor with respect to
any Intercompany Debt (other than those Non-Wholly Owned Subsidiaries listed on
Part D of Schedule XIII) shall have duly authorized, executed and delivered the
Intercompany Subordination Agreement in the form of Exhibit P hereto (as
amended, modified, restated and/or supplemented from time to time, the
"Intercompany Subordination Agreement"), and the Intercompany Subordination
Agreement shall be in full force and effect.

                  (d)      On the Initial Borrowing Date, Murdock and Holdings
shall have duly authorized, executed and delivered the Capital Call Agreement in
the form of Exhibit Q hereto (as modified, supplemented or amended from time to
time, the "Capital Call Agreement"), and the Capital Call Agreement shall be in
full force and effect.

                  (e)      On the Initial Borrowing Date, (i) the U.S. Borrower
and the Bermuda Partnership Partners shall have entered into intercompany
purchase agreements in form and substance satisfactory to the Administrative
Agent (as modified, supplemented or amended from time to time, the "Intercompany
Receivables Documents"), providing for the sale of accounts receivable by the
Bermuda Partnership Partners to, and the purchase of accounts receivable by, the
U.S. Borrower, which sale arrangements shall be on a non-recourse basis and for
reasonably equivalent value and otherwise on terms satisfactory to the Agents,
(ii) the Intercompany Receivables Documents shall be in full force and effect
and (iii) the U.S. Borrower shall have delivered to the Collateral Agent proper
Financing Statements (Form UCC-1 or the equivalent) executed by each Bermuda
Partnership Partner and assigned in favor of the Collateral Agent in a form for
filing in the jurisdiction of organization of such Bermuda Partnership Partner.

                  5.15 Pledge Agreements. (a) On the Initial Borrowing Date,
each U.S. Credit Party shall have duly authorized, executed and delivered the
U.S. Pledge Agreement in the form of Exhibit H (as amended, modified, restated
and/or supplemented from time to time, the "U.S. Pledge Agreement") and shall
have delivered to the Collateral Agent, as Pledgee thereunder, all of the U.S.
Pledge Agreement Collateral, if any, referred to therein and then owned by such
U.S. Credit Party, (x) endorsed in blank in the case of promissory notes
constituting U.S. Pledge Agreement Collateral and (y) together with executed and
undated transfer powers in the case of certificated Equity Interests
constituting U.S. Pledge Agreement Collateral, and the U.S. Pledge Agreement
shall be in full force and effect.

                  (b)      On the Initial Borrowing Date, (i) each of the
Foreign Credit Parties listed on Part A of Schedule XIII shall have duly
authorized, executed and delivered a pledge agreement governed by the laws of
the jurisdiction in which such Foreign Credit Party is organized, which pledge
agreement shall (x) be prepared by local counsel reasonably satisfactory to the
Agents, (y) be in form and substance reasonably satisfactory to the Agents and
(z) be in full force and effect (each such pledge agreement, as amended,
modified, restated and/or supplemented from time to time, a "Foreign Credit
Party Pledge Agreement" and, collectively, the "Foreign Credit Party Pledge
Agreements") and (ii) such Foreign Credit Parties shall have taken such actions
as may be necessary or desirable under local law (as advised by local counsel)
to create, maintain, effect, perfect, preserve, maintain and protect the
security interests granted (or purported to be granted) by each such Foreign
Credit Party Pledge Agreement. Part A of Schedule

                                      -75-



XIII sets forth a list of all Foreign Credit Party Pledge Agreements to be
executed and delivered on the Initial Borrowing Date.

                  (c)      On the Initial Borrowing Date, with respect to any
Credit Party (whether organized under the laws of the United States or a
non-U.S. jurisdiction) which is pledging promissory notes or Equity Interests in
one or more Persons organized under the laws of a different jurisdiction from
the jurisdiction of organization of the respective Credit Party, if the Agents
determine (based on advice of local counsel) that it would be in the interests
of the Lenders that the respective Credit Party authorize, execute and deliver
one or more additional pledge agreements 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, then the
respective Credit Party shall (i) so authorize, execute and deliver one or more
such additional pledge agreements (each, as amended, modified, restated and/or
supplemented from time to time, a "Local Law Pledge Agreement" and,
collectively, the "Local Law Pledge Agreements" and together with the Foreign
Credit Party Pledge Agreements, the "Foreign Pledge Agreements") and (ii) take
such actions as may be necessary or desirable under local law (as advised by
local counsel) to create, maintain, effect, perfect, preserve, maintain and
protect the security interests granted (or purported to be granted) by each such
Local Law Pledge Agreement. Each Local Law Pledge Agreement shall (i) be
prepared by local counsel reasonably satisfactory to the Agents, (ii) be in form
and substance reasonably satisfactory to the Agents and (iii) be in full force
and effect on the Initial Borrowing Date, it being understood and agreed,
however, in the case of any Local Law Pledge Agreement entered into by Holdings
or any of its Domestic Subsidiaries, the respective Credit Party shall not be
required to pledge more than 65% of the total combined voting power of all
classes of Equity Interests entitled to vote of any Foreign Subsidiary that is a
corporation (or treated as such for U.S. federal tax purposes) in support of its
obligations (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. Credit Parties) (although 100% of
the non-voting Equity Interests, if any, of each such Foreign Subsidiary (to the
extent not constituting a Restricted Subsidiary) shall be required to be pledged
in support of such obligations). Part B of Schedule XIII sets forth a list of
all Local Law Pledge Agreements to be executed and delivered on the Initial
Borrowing Date.

                  5.16 U.S. Security Agreement. On the Initial Borrowing Date,
each U.S. Credit Party shall have duly authorized, executed and delivered the
Security Agreement in the form of Exhibit H (as amended, modified, restated
and/or supplemented from time to time, the "U.S. Security Agreement") covering
all of such U.S. Credit Party's present and future Security Agreement Collateral
referred to therein, together with:

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

                  (ii)     certified copies of Requests for Information or
         Copies (Form UCC-11), or equivalent reports, each of a recent date,
         listing all effective financing statements that name any U.S. Credit
         Party or any of its Subsidiaries as debtor and that are filed in the

                                      -76-



         jurisdictions referred to in clause (i) above, together with copies of
         such other financing statements that name any U.S. Credit Party or any
         of its Subsidiaries as debtor (none of which shall cover any of the
         Collateral, except to the extent evidencing Permitted Liens or in
         respect of which the Collateral Agent shall have received termination
         statements (Form UCC-3) or such other termination statements as shall
         be required by local law fully executed (where required) for filing);

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

                  (iv)     evidence that all other actions necessary or, in the
         reasonable opinion of the Collateral Agent, desirable to create,
         maintain, effect, perfect, preserve, maintain and protect the security
         interests purported to be created by the U.S. Security Agreement have
         been taken;

and the U.S. Security Agreement and such other documents shall be in full force
and effect.

                  5.17 Foreign Security Agreements. On the Initial Borrowing
Date, each Foreign Credit Party shall have duly authorized, executed and
delivered such security agreements, documents and instruments as may be required
by the Agents (based on advice of local counsel), with the intent being that the
Lenders receive valid and enforceable first priority, perfected security
interests in all or substantially all of the assets (including all 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 each Foreign Credit Party in which it is
practicable (in accordance with requirements of local law and taking into
account such cost and practicality considerations as may be agreed by the
Agents) to obtain such security interests (as determined by the Agents, based on
advice of local counsel). All security documentation to be executed and
delivered by the Foreign Credit Parties pursuant to the immediately preceding
sentence (each, as amended, modified, restated and/or supplemented from time to
time, a "Foreign Security Agreement" and, collectively, the "Foreign Security
Agreements") shall (i) be prepared by local counsel reasonably satisfactory to
the Agents, (ii) be in form and substance reasonably satisfactory to the Agents
and (iii) be in full force and effect on the Initial Borrowing Date. In
connection with the execution and delivery of the Foreign Security Agreements,
the respective Foreign Credit Parties shall take such actions as may be
necessary or desirable under local law (as advised by local counsel) to create,
maintain, effect, perfect, preserve, maintain and protect the security interests
granted (or purported to be granted) thereby (including, without limitation,
taking actions analogous to those described in Section 5.16 with respect to the
Security Agreement Collateral described in the U.S. Security Agreement and in
Section 5.18 with respect to the Mortgages covering U.S. Mortgaged Properties),
in each case to the extent customary in connection with secured transactions
under the laws of the respective jurisdiction or deemed necessary or desirable
by the Agents based on advice of local counsel. Part C of Schedule XIII sets
forth all Foreign Security Agreements to be executed and delivered on the
Initial Borrowing Date.

                                      -77-



                  5.18 Mortgages; Title Insurance; Surveys; etc. (a) On the
Initial Borrowing Date, the Collateral Agent shall have received:

                  (i)      fully executed counterparts of Mortgages in form and
         substance reasonably satisfactory to the Collateral Agent, which
         Mortgages shall cover such of the Real Property (located in the United
         States or any State or territory thereof) owned or leased by Holdings
         or any of its Subsidiaries (after giving effect to the Transaction) as
         are designated on Part A of Schedule III as a U.S. Mortgaged Property,
         together with evidence that counterparts of the Mortgages have been
         delivered to the title insurance company insuring the lien of such
         Mortgage for recording in all places to the extent necessary or, in the
         reasonable opinion of the Collateral Agent, desirable to effectively
         create a valid and enforceable first priority mortgage lien or
         immovable hypothec on each U.S. Mortgaged Property in favor of the
         Collateral Agent (or such other trustee as may be required or desired
         under local law) for the benefit of the Secured Creditors, subject to
         Permitted Encumbrances;

                  (ii)     Mortgage Policies on the U.S. Mortgaged Properties
         issued by such title insurers reasonably satisfactory to the Collateral
         Agent in amounts satisfactory to the Agents and the Required Lenders
         assuring the Collateral Agent that the Mortgages on such U.S. Mortgaged
         Properties are valid and enforceable first priority mortgage liens or
         immovable hypothecs on the respective U.S. Mortgaged Properties, free
         and clear of all defects and encumbrances except Permitted Encumbrances
         and such Mortgage Policies shall otherwise be in form and substance
         reasonably satisfactory to the Agents and the Required Lenders and
         shall include, as appropriate, an endorsement for future advances under
         this Agreement and the Notes and for any other matter that the
         Collateral Agent may request, shall not include an exception for
         mechanics' liens or creditors' rights, and shall provide for
         affirmative insurance and such reinsurance (including direct access
         agreements) as the Collateral Agent may request;

                  (iii)    surveys, in form and substance reasonably
         satisfactory to the Collateral Agent, of each U.S. Mortgaged Property
         designated as a "surveyed property" on Part A of Schedule III, dated a
         recent date reasonably acceptable to the Collateral Agent and certified
         in a manner reasonably satisfactory to the Collateral Agent by a
         licensed professional surveyor reasonably satisfactory to the Agents;
         and

                  (iv)     Landlord-Lender Agreements, in form and substance
         reasonably acceptable to the Collateral Agent, from landlords under
         leases for those properties designated on Part A of Schedule III as a
         U.S. Leasehold Property, pursuant to which such landlords shall, among
         other things, waive any lien they may have on the personal property and
         fixtures of the U.S. Borrower or any Subsidiary Guarantor located at a
         U.S. Leasehold Property, and consent to the granting of a Mortgage over
         the U.S. Borrower's or Subsidiary Guarantor's interest in each U.S.
         Leasehold Property.

                  (b)      On the Initial Borrowing Date, with respect to each
Real Property (located outside the United States and the States and territories
thereof) owned by Holdings or any of its Subsidiaries (after giving effect of
the Transaction) and designated on Part B of Schedule III as a Foreign Mortgaged
Property, the respective Credit Party owning same shall have executed such

                                      -78-



Foreign Security Agreements as may be necessary or desirable (in accordance with
the requirements of Section 5.17) to create a valid and enforceable first
priority, perfected security interest (or the equivalent under local law) in the
respective Foreign Mortgaged Property to secure (as nearly as possible) its
obligations under this Agreement or its Guaranty, as applicable, and shall have
taken such other actions under local law as are customary in connection with the
granting of security interests in Real Property in such jurisdictions for
transactions of this type. All actions required pursuant to this clause (b)
shall be required to comply with the requirements of Section 5.17 and shall be
taken to the satisfaction of the Agents.

                  5.19 Employee Benefit Plans; Shareholders' Agreements;
Management Agreements; Collective Bargaining Agreements; Existing Indebtedness
Agreements; Tax Allocation Agreements. On or prior to the Initial Borrowing
Date, there shall have been made available to the Administrative Agent by the
U.S. Borrower true and correct copies of the following documents, certified as
such by the U.S. Borrower (in the case of the agreements referred to in clause
(ii), (iii) and (vi) below):

                  (i)      all written Plans (and for each Plan that is required
         to file an annual report on Internal Revenue Service Form 5500-series,
         a copy of the most recent such report (including, to the extent
         required, the related financial and actuarial statements and opinions
         and other supporting statements, certifications, schedules and
         information), and for each written Plan that is a "single-employer
         plan," as defined in Section 4001(a)(15) of ERISA, the most recently
         prepared actuarial valuation therefor) and any other written "employee
         benefit plans," as defined in Section 3(3) of ERISA, and any other
         material written agreements, plans or arrangements, with or for the
         benefit of current or former employees of Holdings or any of its
         Subsidiaries or any ERISA Affiliate (provided that the foregoing shall
         apply in the case of any Multiemployer Plan, only to the extent that
         any document described therein is in the possession of Holdings or any
         Subsidiary of Holdings or any ERISA Affiliate or reasonably available
         thereto from the sponsor or trustee of any such plan) (collectively,
         the "Employee Benefit Plans");

                  (ii)     all written agreements (including, without
         limitation, shareholders' agreements, subscription agreements and
         registration rights agreements) entered into by Holdings or any of its
         Subsidiaries governing the terms and relative rights of its capital
         stock or other Equity Interests and any agreements entered into by
         shareholders relating to any such entity with respect to its capital
         stock or other Equity Interests (collectively, the "Shareholders'
         Agreements");

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

                  (iv)     all collective bargaining agreements applying or
         relating to any employee of Holdings or any of its Subsidiaries after
         giving effect to the Transaction (collectively, the "Collective
         Bargaining Agreements");

                                      -79-



                  (v)      all agreements evidencing or relating to any Existing
         Indebtedness of Holdings or any of its Subsidiaries (collectively, the
         "Existing Indebtedness Agreements"); and

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

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

                  5.20 Solvency Certificate; Solvency Opinion; Insurance
Certificates; etc. On or before the Initial Borrowing Date, the Administrative
Agent shall have received:

                  (a)      a solvency certificate in the form of Exhibit J-1
from the chief financial officer of Holdings, dated the Initial Borrowing Date,
and supporting the conclusion that, after giving effect to the Transaction and
the incurrence of all financings contemplated herein, each Borrower (on a
stand-alone basis), the U.S. Borrower and its Subsidiaries (on a consolidated
basis), the Bermuda Borrower and its Subsidiaries (on a consolidated basis) and
Holdings and its Subsidiaries (on a consolidated basis), in each case, are not
insolvent and will not be rendered insolvent by the indebtedness incurred in
connection herewith, will not be left with unreasonably small capital with which
to engage in its or their respective businesses and will not have incurred debts
beyond its or their ability to pay such debts as they mature and become due;

                  (b)      a solvency opinion in the form of Exhibit J-2 from a
third party valuation firm satisfactory to each of the Agents, addressed to each
of the Agents and each of the Lenders and dated the Initial Borrowing Date and
supporting the conclusions, that, after giving effect to the Transaction and the
incurrence of all financings contemplated herein, the U.S. Borrower and its
Subsidiaries (on a consolidated basis), are not insolvent and will not be
rendered insolvent by the indebtedness incurred in connection herewith, will not
be left with unreasonably small capital with which to engage in their respective
businesses and will not have incurred debts beyond their ability to pay such
debts as they mature and become due;

                  (c)      evidence of insurance complying with the requirements
of Section 8.03 for the business and properties of Holdings and its
Subsidiaries, in scope, form and substance reasonably satisfactory to the Agents
and the Required Lenders and naming the Collateral Agent as an additional
insured and/or loss payee, and stating that such insurance shall not be canceled
or materially revised without at least 30 days' prior written notice by the
insurer to the Collateral Agent;

                  (d)      a valuation of the Dole "brand name" and related
intellectual property from a valuation firm satisfactory to the Agents and the
Required Lenders, which valuation shall be in form and substance satisfactory to
the Agents and the Required Lenders;

                  (e)      appraisals of all vessels owned by the U.S. Borrower
and its Subsidiaries, in each case from an appraiser satisfactory to the Agents
and the Required Lenders, which

                                      -80-



appraisals shall be in form and substance satisfactory to the Agents and the
Required Lenders; and

                  (f)      a certificate from an Authorized Officer of the U.S.
Borrower in form and substance satisfactory to the Agents, certifying that the
U.S. Borrower has received a tax opinion from Deloitte & Touche LLP, tax advisor
to Holdings, addressed to Holdings and dated the Initial Borrowing Date,
addressing certain tax issues arising in connection with the consummation of the
Transaction and containing such other certifications with respect to the tax
analysis as may be required by the Agents.

                  5.21 Financial Statements; Pro Forma Financial Statements;
Projections. (a) On or prior to the Initial Borrowing Date, there shall have
been delivered to the Administrative Agent (i) true and correct copies of the
financial statements referred to in Section 7.10(b)(i), (ii) an unaudited pro
forma (calculated as if the Transaction had occurred on such date) consolidated
balance sheet of the U.S. Borrower and its Consolidated Subsidiaries as of
December 28, 2002 and the related pro forma (calculated as if the Transaction
had occurred on the first day of the period covered thereby) statement of income
for the twelve-month period ended as of such date, after giving effect to the
Transaction and the incurrence of all Indebtedness (including the Loans and the
New Senior Notes) contemplated herein and prepared in accordance with Article 11
of Rule S-X under the Securities Act (the "Pro Forma Financial Statements"),
together with a related funds flow statement, (iii) unaudited consolidated
financial data of each Business Segment of the U.S. Borrower and its
Consolidated Subsidiaries at, or for the fiscal year of the U.S. Borrower ended
on, December 28, 2002 (i.e., consolidated statements of revenue, EBIT and
assets) and (iv) interim consolidated financial statements (including income
statements and balance sheets) of the U.S. Borrower for each internal accounting
period ended after December 28, 2002 and continuing through February 22, 2003,
which financial statements, Pro Forma Financial Statements, funds flow statement
and interim financial statements shall be reasonably satisfactory to the Agents
and the Required Lenders.

                  (b)      On or prior to the Initial Borrowing Date, there
shall have been delivered to the Administrative Agent detailed projected
consolidated financial statements of Holdings and its Consolidated Subsidiaries
certified by the Chief Financial Officer of Holdings for the five Fiscal Years
ended after the Initial Borrowing Date (including, with respect to the Fiscal
Year of Holdings ended nearest December 31, 2003, for each Fiscal Quarter
comprising such Fiscal Year) (the "Projections"), which Projections (x) shall
reflect the forecasted consolidated financial conditions and income and expenses
of Holdings and its Consolidated Subsidiaries after giving effect to the
Transaction and the related financing thereof and the other transactions
contemplated hereby and (y) shall be reasonably satisfactory in form and
substance to the Agents and the Required Lenders.

                  5.22 Payment of Fees. On the Initial Borrowing Date, all
costs, fees and expenses, and all other compensation due to the Agents and the
Lenders (including, without limitation, legal fees and expenses) shall have been
paid to the extent then due.

                  5.23 Consent Letter. On the Initial Borrowing Date, the
Administrative Agent shall have received a letter from Corporation Service
Company, presently located at 80 State Street, Albany, New York, 12207,
substantially in the form of Exhibit O, indicating its consent to

                                      -81-



its appointment by each Credit Party as its agent to receive service of process
as specified in Section 13.08, the U.S. Subsidiaries Guaranty or the Foreign
Subsidiaries Guaranty, as the case may be.

                  SECTION 6. SECTION 6A. Special Condition Precedent to
Incurrence of Revolving Loans and Swingline Loans. The obligation of each RL
Lender to make Revolving Loans (including Revolving Loans made on the Initial
Borrowing Date, but excluding Mandatory Borrowings made after the Initial
Borrowing Date, which shall be made as provided in Sections 1.01(g) and (h)) and
the Swingline Lender to make Swingline Loans is subject, at the time of each
such making of a Revolving Loan or Swingline Loan (except as hereinafter
indicated), to the satisfaction of the following condition:

                  6A.01 Limitation on Cash on Hand

                  . The aggregate amount of Unrestricted Cash owned or held by
Holdings and its Subsidiaries (determined after giving pro forma effect to the
making of each such Revolving Loan and/or Swingline Loan and the application of
proceeds therefrom and from any other Unrestricted Cash on hand (to the extent
such proceeds and/or other Unrestricted Cash are actually utilized by the
respective Borrower and/or any other Subsidiary of Holdings on the date of the
incurrence of the respective such Revolving Loan and/or Swingline Loan for a
permitted purpose under this Agreement other than an investment in Cash
Equivalents)) shall not exceed $50,000,000 (for purposes of Unrestricted Cash
denominated in a currency other than Dollars, taking the U.S. Dollar Equivalent
of such Unrestricted Cash as determined on the date of the incurrence of the
respective such Revolving Loan and/or Swingline Loan).

                  SECTION 6B. Conditions Precedent to All Credit Events. The
obligation of each Lender to make Loans (including Loans made on the Initial
Borrowing Date, but excluding Mandatory Borrowings made after the Initial
Borrowing Date, which shall be made as provided in Sections 1.01(g) and (h)),
the obligation of an Issuing Lender to issue any Letter of Credit and the
obligation of a Bank Guaranty Issuer to issue any Bank Guaranty, is subject, at
the time of each such Credit Event (except as hereinafter indicated), to the
satisfaction of the following conditions:

                  6B.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
(it being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct in
all material respects only as of such specified date).

                  6B.02 Notice of Borrowing; Letter of Credit Request; etc. (a)
Prior to the making of each Loan (excluding Swingline Loans and Mandatory
Borrowings), the Administrative Agent shall have received a Notice of Borrowing
meeting the requirements of Section 1.03(a). Prior to the making of any
Swingline Loan, the Swingline Lender shall have received the notice required by
Section 1.03(b)(i).

                                      -82-



                  (b)      Prior to the issuance of each Letter 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).

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

                  The occurrence of the Initial Borrowing Date and the

acceptance of the benefits or proceeds of each Credit Event shall constitute a
representation and warranty by each Credit Agreement Party to each Agent and
each of the Lenders that all the conditions specified in Section 5 (with respect
to Credit Events occurring on the Initial Borrowing Date), Section 6A (with
respect to the Credit Event specifically described in said Section) and Section
6B (with respect to Credit Events on and after the Initial Borrowing 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. All of the Notes, certificates, legal opinions and other documents
and papers referred to in Sections 5, 6A and 6B, unless otherwise specified,
shall be delivered to the Administrative Agent at the Notice Office for the
account of each of the Lenders and, except for the Notes, in sufficient
counterparts or copies for each of the Lenders and shall be in form and
substance reasonably satisfactory to the Lenders (as evidenced by their
execution and delivery of this Agreement).

                  SECTION 7. Representations and Warranties. In order to induce
the Lenders to enter into this Agreement, to make the Loans and issue and/or
participate in the Letters of Credit and Bank Guaranties as provided for herein,
each Credit Agreement Party makes the following representations, warranties and
agreements with the Lenders, in each case after giving effect to the
Transaction, all of which shall survive the execution and delivery of this
Agreement, the making of the Loans and the issuance of the Letters of Credit and
Bank Guaranties (with the occurrence of the Initial Borrowing Date and each
Credit Event on or after the Initial Borrowing 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 Initial Borrowing
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 Holdings and each of its
Subsidiaries (i) is a duly organized and validly existing Company in good
standing (or its equivalent) under the laws of the jurisdiction of its
organization, (ii) has the Company power and authority to own its property and
assets and to transact the business in which it is engaged and presently
proposes to engage and (iii) is duly qualified and is authorized to do business
and is in good standing (or its equivalent) in all jurisdictions where it is
required to be so qualified (or its equivalent) and where the failure to be so
qualified has had, or could reasonably be expected to have, a Material Adverse
Effect.

                  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 Documents to which it is a party and
has taken all necessary Company action to

                                      -83-



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

                  7.03 No Violation. Neither the execution, delivery or
performance by any Credit Party or any Subsidiary thereof of the Documents to
which it is a party, nor compliance by any Credit Party or any such Subsidiary
with the terms and provisions thereof, nor the consummation of the transactions
contemplated herein or therein, (i) will contravene any material provision of
any applicable law, statute, rule or regulation, or any order, writ, injunction
or decree of any court or governmental instrumentality, (ii) will conflict or be
inconsistent with or result in any breach of, any of the terms, covenants,
conditions or provisions of, or constitute a default under, or (other than
pursuant to the Security Documents) result in the creation or imposition of (or
the obligation to create or impose) any Lien upon any of the material property
or assets of Holdings or any of its Subsidiaries pursuant to the terms of any
indenture, mortgage, deed of trust, loan agreement, credit agreement or any
other material agreement, contract or instrument to which Holdings or any of its
Subsidiaries is a party or by which it or any of its material property or assets
are bound or to which it may be subject (including, without limitation, the New
Senior Notes Indenture, the Existing Senior Notes Documents and the other
Existing Indebtedness Agreements) or (iii) will violate any provision of the
certificate of incorporation, by-laws, certificate of partnership, partnership
agreement, certificate of limited liability company, limited liability company
agreement or equivalent organizational document, as the case may be, of Holdings
or any of its Subsidiaries.

                  7.04 Litigation. There are no actions, suits, proceedings or
investigations pending or, to the knowledge of any Senior Officer, threatened
(i) with respect to any Credit Document, (ii) with respect to the Transaction or
any other Document, except for the Permitted Shareholder Litigation or (iii)
that have had, or could reasonably be expected to have, 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 A Term Loans shall be utilized by the U.S. Borrower on the Initial
Borrowing Date solely to (x) finance the Merger and the Refinancing and (y) pay
fees and expenses incurred in connection with the Transaction; provided that the
proceeds of Tranche A Term Loans shall be applied (I) first, to finance the
Merger and pay fees and expenses incurred in connection with the Transaction and
(II) second, after the application of such proceeds in full for the purposes
described in preceding subclause (I), to finance the Refinancing. The proceeds
of the Tranche B Term Loans shall be utilized by the Bermuda Borrower on the
Initial Borrowing Date solely to (x) finance the Merger and the Refinancing, (y)
effect Intercompany Distribution Transactions in accordance with the
requirements of this Agreement and (z) pay fees and expenses incurred in
connection with the Transaction; provided that (i) if the U.S. Borrower has
fully available cash on hand in such amount as is required to comply with the
provisions of Section 5.12 (but, for such purpose, without the Bermuda Borrower
utilizing the full amount of the Tranche B Term

                                      -84-



Loans to finance the Transaction), then the portion of the proceeds of the
Tranche B Term Loans not so required to be utilized to finance the Transaction
in compliance with said Section 5.12 may be utilized for the general corporate
and working capital purposes of the Bermuda Borrower and its affiliates and (ii)
the proceeds of Tranche B Term Loans utilized to fund Intercompany Distribution
Transactions shall be applied (I) first, to finance the Refinancing and (II)
second, after the application of such proceeds in full for the purposes
described in preceding subclause (I), to finance the Merger and pay fees and
expenses incurred in connection with the Transaction.

                  (b)      All proceeds of Revolving Loans and Swingline Loans
shall be used for the Borrowers' and their respective Subsidiaries' ongoing
working capital requirements and general corporate purposes (including to effect
Permitted Acquisitions (to the extent permitted by this Agreement) but excluding
payments in connection with the Transaction (except as provided in the proviso
below)); provided, however, that proceeds of Dollar Facility Revolving Loans and
Multicurrency Facility Revolving Loans (for this purpose using the Dollar
Equivalent of the principal amount of all Euro Denominated Revolving Loans
incurred on the Initial Borrowing date) in an aggregate amount not to exceed
$110,000,000 may be utilized by the Borrowers for the purposes described in
Section 7.05(a) above.

                  (c)      At the time of each Credit Event occurring on or
after the Initial Borrowing Date, the fair market value of all Margin Stock
(excluding shares of treasury stock) owned by Holdings and its Subsidiaries does
not exceed $2,500,000 (or, if the foregoing representation could not correctly
be made because the fair market value of Margin Stock owned by Holdings and its
Subsidiaries exceeds $2,500,000 solely as a result of an increase in the trading
price of such Margin Stock (and not as a result of supplemental purchases of
Margin Stock), the lesser of (x) the fair market value of all such Margin Stock
and (y) $10,000,000). In addition, at the time of each Credit Event occurring on
or after the Initial Borrowing Date, the value of the Margin Stock at any time
owned by Holdings and its Subsidiaries does not exceed 25% of the value of the
assets of Holdings and its Subsidiaries taken as a whole. Neither the making of
any Loan nor the use of the proceeds thereof nor the occurrence of any other
Credit Event will violate or be inconsistent with the provisions of Regulation
T, Regulation U or Regulation X.

                  7.06 Governmental Approvals. Except (x) for immaterial filings
relating to the Acquisition set forth on Schedule XIX and (y) as may have been
obtained or made on or prior to the Initial Borrowing Date (and which remain in
full force and effect on the Initial Borrowing Date), no order, consent,
approval, license, authorization or validation of, or filing, recording or
registration with, or exemption by, any foreign or domestic governmental or
public body or authority, or any subdivision thereof, is required to authorize
or is required in connection with (i) the execution, delivery and performance of
any Document or (ii) the legality, validity, binding effect or enforceability of
any Document.

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

                  7.08 Public Utility Holding Company Act. Neither Holdings nor
any of its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an

                                      -85-



"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
as amended.

                  7.09 True and Complete Disclosure. All factual information
(taken as a whole) heretofore or contemporaneously furnished by or on behalf of
Holdings or any of its Subsidiaries in writing to any Agent or any Lender
(including, without limitation, all information contained in the Documents) for
purposes of or in connection with this Agreement, the other Documents or any
transaction contemplated herein or therein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of any such
Persons in writing to any Agent or any Lender will be, true and accurate in all
material respects on the date as of which such information is dated or certified
and not incomplete by omitting to state any material fact necessary to make such
information (taken as a whole) not misleading in any material 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 7.09, such factual
information shall not include the Projections or any projected financial
information contained in any financial projections delivered pursuant to Section
8.01(d).

                  7.10 Financial Condition; Financial Statements. (a) On and as
of the Initial Borrowing Date, on a pro forma basis after giving effect to the
Transaction and to all Indebtedness (including the Loans and the New Senior
Notes) incurred, and to be incurred, and Liens created, and to be created, by
each Credit Party in connection therewith, with respect to each Borrower (on a
stand-alone basis), Holdings and its Subsidiaries (on a consolidated 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), Holdings
and its Subsidiaries (on a consolidated 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 7.10(a), "debt"
means any liability on a claim, and "claim" means (i) right to payment, whether
or not such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured
or unsecured or (ii) right to an equitable remedy for breach of performance if
such breach gives rise to a payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured. The amount of contingent liabilities at any
time shall be computed as the amount that, in the light of all facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.

                  (b)      (i) The audited consolidated statements of financial
condition of the U.S. Borrower and its Consolidated Subsidiaries at December 30,
2000, December 29, 2001 and December 28, 2002 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
Initial Borrowing 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 and (ii) the Pro Forma Financial Statements present a good faith
estimate of the consolidated pro forma financial

                                      -86-



condition of the U.S. Borrower and its Consolidated Subsidiaries and the pro
forma results of operations of the U.S. Borrower and its Consolidated
Subsidiaries for the respective periods covered thereby (after giving effect to
the Transaction at the date thereof or for the period covered thereby). All of
the financial statements referred to in clause (i) of the immediately preceding
sentence have been prepared in accordance with U.S. GAAP consistently applied
except to the extent provided in the notes to said financial statements.

                  (c)      Since December 28, 2002 (but after giving effect to
the Transaction as if same had occurred immediately prior thereto), nothing has
occurred that has had, or could reasonably be expected to have, a Material
Adverse Effect.

                  (d)      Except as fully reflected in the financial statements
described in Section 7.10(b) and as otherwise permitted by Section 9.04, (i)
there were as of the Initial Borrowing Date (and after giving effect to any
Loans made on such date), no liabilities or obligations with respect to Holdings
or any of its Subsidiaries of any nature whatsoever (whether absolute, accrued,
contingent or otherwise and whether or not due) which, either individually or in
the aggregate, could reasonably be expected to be material to Holdings and its
Subsidiaries taken as a whole and (ii) no Credit Agreement Party knows of any
basis for the assertion against Holdings or any of its Subsidiaries of any such
liability or obligation which, either individually or in the aggregate, has had,
or could reasonably be expected to have, a Material Adverse Effect.

                  (e)      The Projections have been prepared on a basis
consistent with the financial statements referred to in Section 7.10(b) and are
based on good faith estimates and assumptions made by the management of
Holdings, and on the Initial Borrowing 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 Credit Agreement Party or any of its Subsidiaries which has had, or could
reasonably be expected to have, a Material Adverse Effect, which has not been
disclosed herein or in such other documents, certificates and statements
furnished to the Lenders for use in connection with the transactions
contemplated hereby.

                  7.11 Security Interests. On and after the Initial Borrowing
Date, each of the Security Documents creates (or after the execution and
delivery thereof will create), as security for the Obligations covered thereby,
a valid and enforceable perfected security interest in and Lien on all of the
Collateral subject thereto, superior to and prior to the rights of all third
Persons, and subject to no other Liens (except that (i) the Security Agreement
Collateral may be subject to Permitted Liens, (ii) the Pledge Agreement
Collateral may be subject to the Liens described in clauses (i) and (v) of
Section 9.03 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 Initial Borrowing Date or on or prior to the
execution and delivery thereof as contemplated by Sections 8.11, 8.12, 8.15 and
9.17.

                                      -87-



                  7.12 Compliance with ERISA. (a) Schedule V sets forth, as of
the Initial Borrowing Date, each Plan and each Multiemployer Plan. Each Plan
(and each related trust, insurance contract or fund) is in compliance in all
respects with its terms and in all respects with all applicable laws, including,
without limitation, ERISA and the Code and in compliance with the following,
except to the extent that any such noncompliances, individually or in the
aggregate, would not result in a Material Adverse Effect; each Plan (and each
related trust, if any) which is intended to be qualified under Section 401(a) of
the Code has received a determination letter from the Internal Revenue Service
to the effect that it meets the requirements of Sections 401(a) and 501(a) of
the Code (or the sponsor has applied for such determination letter within the
remedial amendment period); (1) no Reportable Event has occurred; (2) to the
knowledge of any Senior Officer, no Multiemployer Plan is insolvent or in
reorganization; (3) no Plan has an Unfunded Current Liability; (4) no Plan which
is subject to Section 412 of the Code or Section 302 of ERISA has an accumulated
funding deficiency, within the meaning of such sections of the Code or ERISA, or
has applied for or received a waiver of an accumulated funding deficiency or an
extension of any amortization period, within the meaning of Section 412 of the
Code or Section 303 or 304 of ERISA; (5) all required contributions with respect
to a Plan and a Multiemployer Plan have been made; (6) neither Holdings nor any
Subsidiary of Holdings nor any ERISA Affiliate has incurred any outstanding
material liability (including any indirect, contingent or secondary liability)
to or on account of a Plan or a Multiemployer Plan pursuant to Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971 or 4975 of the Code or expects to incur any such
material liability under any of the foregoing sections with respect to any Plan
or a Multiemployer Plan; (7) no condition exists which presents a material risk
to Holdings or any Subsidiary of Holdings or any ERISA Affiliate of incurring a
material liability to or on account of a Plan or a Multiemployer Plan pursuant
to the foregoing provisions of ERISA and the Code; (8) no involuntary
proceedings have been instituted to terminate or appoint a trustee to administer
any Plan which is subject to Title IV of ERISA; (9) no action, suit, proceeding,
hearing, audit or investigation with respect to the administration, operation or
the investment of assets of any Plan (other than routine claims for benefits) is
pending, expected or threatened; (10) using actuarial assumptions and
computation methods consistent with Part 1 of subtitle E of Title IV of ERISA,
the aggregate liabilities of Holdings and its Subsidiaries and ERISA Affiliates
to any Multiemployer Plans in the event of a withdrawal therefrom, as of the
close of the most recent fiscal year of each such Multiemployer Plan ended prior
to the date of the most recent Credit Event would not exceed $10,000,000; (11)
each group health plan (as defined in Section 607(1) of ERISA or Section
4980B(g)(2) of the Code) which covers or has covered employees or former
employees of Holdings, any Subsidiary of Holdings, or any ERISA Affiliate has at
all times been operated in compliance with the provisions of Part 6 of subtitle
B of Title I of ERISA and Section 4980B of the Code other than any
non-compliance which would not result in a material liability to Holdings or any
Subsidiary of Holdings; (12) no lien imposed under the Code or ERISA on the
assets of Holdings or any Subsidiary of Holdings or any ERISA Affiliate exists,
is likely to arise on account of any Plan or any Multiemployer Plan; and (13)
and neither Holdings nor any Subsidiary of Holdings maintains or contributes to
(a) any employee welfare benefit plan (as defined in Section 3(1) of ERISA)
which provides benefits to retired employees and/or other former employees
(other than as required by Section 601 of ERISA) or (b) any Plan, the
obligations with respect to which could reasonably be expected to have a
Material Adverse Effect.

                                      -88-



                  (b)      Each Foreign Pension Plan has been maintained in
substantial compliance with its terms and with the requirements of any and all
applicable laws, statutes, rules, regulations and orders and has been
maintained, where required, in good standing with applicable regulatory
authorities, except to the extent that such noncompliances, individually or in
the aggregate, would not result in a Material Adverse Effect. All required
contributions with respect to a Foreign Pension Plan have been made. Neither
Holdings nor any of its Subsidiaries has incurred any material outstanding
obligation in connection with the termination of or withdrawal from any Foreign
Pension Plan. The present value of the accrued benefit liabilities (whether or
not vested) under each Foreign Pension Plan, determined as of the end of
Holdings' most recently ended fiscal year on the basis of actuarial assumptions,
each of which is reasonable, did not exceed the current value of the assets of
such Foreign Pension Plan allocable to such benefit liabilities or
alternatively, the Foreign Pension Plan is funded in compliance with applicable
law in all material respects and Holdings and its Subsidiaries have established
adequate reserves for the present value of such accrued benefit liabilities
under such Foreign Pension Plan in the financial statements delivered pursuant
to Section 8.01(b) and (c).

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

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

                  (c)      On the Initial Borrowing Date and after giving effect
to the Transaction, the authorized capital stock of the Bermuda Borrower shall
consist of 2,319,640,170 shares of common stock, $.10 par value per share, of
which 2,319,640,170 shares are issued and outstanding and owned indirectly by
the Bermuda Partnership. All such outstanding shares have been duly and validly
issued, are fully paid and nonassessable and free of preemptive rights. The
Bermuda Borrower does not have outstanding any securities convertible into or
exchangeable for its capital stock or outstanding any rights to subscribe for or
to purchase, or any options for the purchase of, or any agreement providing for
the issuance (contingent or otherwise) of, or any

                                      -89-



calls, commitments or claims of any character relating to, its capital stock or
any stock appreciation or similar rights.

                  7.14 Subsidiaries. On and as of the Initial Borrowing Date and
after giving effect to the Transaction, Holdings has no Subsidiaries other than
the U.S. Borrower and its Subsidiaries, and the U.S. Borrower has no
Subsidiaries other than those Subsidiaries listed on Schedule VII. Schedule VII
correctly sets forth, as of the Initial Borrowing Date and after giving effect
to the Transaction, (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 each of the
Borrowers have been duly and validly issued, are fully paid and non-assessable
and, in the case of Non-Wholly Owned Subsidiaries of the U.S. Borrower, have
been issued free of preemptive rights. Except as set forth on Part II of
Schedule X attached hereto, no Subsidiary of the U.S. Borrower has outstanding
any securities convertible into or exchangeable for its capital stock or other
Equity Interests or outstanding any right to subscribe for or to purchase, or
any options or warrants for the purchase of, or any agreement providing for the
issuance (contingent or otherwise) of or any calls, commitments or claims of any
character relating to, its capital stock or other Equity Interests or any stock
appreciation or similar rights. Except for the existing investments described on
Schedule VI, as of the Initial Borrowing Date, neither Holdings nor any of its
Subsidiaries owns or holds, directly or indirectly, any capital stock or equity
security of, or any other Equity Interests in, any Person other than its
Subsidiaries indicated on Schedule VII.

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

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

                  7.17 Environmental Matters. (a) Each of Holdings and each of
its Subsidiaries has complied with, and on the date of each Credit Event is in
compliance with, all applicable Environmental Laws and the requirements of any
permits issued under such Environmental Laws and neither Holdings nor any of its
Subsidiaries is liable for any material penalties, fines or forfeitures for
failure to comply with any of the foregoing. There are no pending or past or, to
the knowledge of any Senior Officer, threatened Environmental Claims against
Holdings or any

                                      -90-



of its Subsidiaries or any Real Property owned, leased or operated by Holdings
or any of its Subsidiaries (including any such claim arising out of the
ownership, lease or operation by Holdings or any of its Subsidiaries of any Real
Property formerly owned, leased or operated by Holdings or any of its
Subsidiaries but no longer owned, leased or operated by Holdings or any of its
Subsidiaries). There are no facts, circumstances, conditions or occurrences on
any Real Property owned, leased or operated by Holdings or any of its
Subsidiaries (including, to the knowledge of a Senior Officer, any Real Property
formerly owned, leased or operated by Holdings or any of its Subsidiaries but no
longer owned, leased or operated by Holdings or any of its Subsidiaries) or on
any property adjoining or in the vicinity of any such Real Property that would
reasonably be expected (i) to form the basis of an Environmental Claim against
Holdings or any of its Subsidiaries or any such Real Property or (ii) to cause
any such Real Property to be subject to any restrictions on the ownership,
occupancy, use or transferability of such Real Property by Holdings or any of
its Subsidiaries under any applicable Environmental Law.

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

                  (c)      Notwithstanding anything to the contrary in this
Section 7.17, the representations made in this Section 7.17 shall only be untrue
if the aggregate effect of all conditions, failures, noncompliances,
Environmental Claims, Hazardous Materials, Releases and presence of underground
storage tanks, in each case of the types described above, has had, or could
reasonably be expected to have, a Material Adverse Effect.

                  7.18 Properties. All Real Property and vessels owned by
Holdings or any of its Subsidiaries, and all material leaseholds leased by
Holdings or any of its Subsidiaries, in each case as of the Initial Borrowing
Date and after giving effect to the Transaction, and the nature of the interest
therein, is correctly set forth in Schedule III. Each of Holdings and each of
its Subsidiaries has good and marketable title to, or a validly subsisting
leasehold interest in, all material properties owned or leased by it, including
all Real Property and vessels reflected in Schedule III and in the financial
statements (including the Pro Forma Financial Statements) referred to in Section
7.10(b) (except (x) such properties sold in the ordinary course of business
since the dates of the respective financial statements referred to therein, (y)
such properties otherwise sold as permitted by the terms of this Agreement and
(z) such Real Properties owned by the 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.

                                      -91-



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

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

                  7.21 Scheduled Existing Indebtedness. Schedule IV sets forth a
true and complete list of all Indebtedness of Holdings and its Subsidiaries as
of the Initial Borrowing Date and which is to remain outstanding after giving
effect to the Transaction and the incurrence of Loans on such date (exclusive of
(i) Indebtedness pursuant to this Agreement and the other Credit Documents, (ii)
Indebtedness pursuant to the Existing Senior Notes Documents, (iii) Indebtedness
pursuant to the New Senior Notes Documents, (iv) intercompany Indebtedness
pursuant to the Intercompany Distribution Transactions, (v) Indebtedness of
Holdings and/or any of its Subsidiaries of the types described in clause (viii)
of Section 9.04, (vi) Capitalized Lease Obligations arising under the lease
entered into in connection with the Sale-Leaseback Transaction, (vii)
obligations described in Section 9.04(xxii), and (viii) immaterial Contingent
Obligations of Subsidiaries of the U.S. Borrower that represent guaranties of
obligations other than Indebtedness), in each case showing the aggregate
principal amount thereof (and the aggregate amount of any undrawn commitments
with respect thereto) and the name of the respective borrower and any other
entity which directly or indirectly guarantees such debt. Part

                                      -92-



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

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

                  7.23 Representations and Warranties in Other Documents. All
representations and warranties set forth in the Merger Agreement and the New
Senior Notes Documents were true and correct in all material respects at the
time as of which such representations and warranties were made (or deemed made
pursuant thereto) and shall be true and correct in all material respects as of
the Initial Borrowing Date as if such representations or warranties were made on
and as of such date, unless stated to relate to a specific earlier date, in
which case such representations or warranties shall be true and correct in all
material respects as of such specified date.

                  7.24 Transaction. At the time of consummation thereof, each
element of the Transaction shall have been consummated in all material respects
in accordance with the terms of the relevant Documents therefor and all
applicable laws. At the time of consummation thereof, all consents and approvals
of, and filings and registrations with, and all other actions in respect of, all
governmental agencies, authorities or instrumentalities required in order to
make or consummate each element of the Transaction in accordance with the terms
of the relevant Documents therefor and all applicable laws have been obtained,
given, filed or taken and are or will be in full force and effect (or effective
judicial relief with respect thereto has been obtained). All applicable waiting
periods with respect thereto have or, prior to the time when required, will
have, expired without, in all such cases, any action being taken by any
competent authority that restrains, prevents, or imposes material adverse
conditions upon the Transaction. Additionally, there does not exist any
judgment, order or injunction prohibiting or imposing material adverse
conditions upon any element of the Transaction, the occurrence of any Credit
Event, or the performance by Holdings or any of its Subsidiaries of their
respective obligations under the Documents and in accordance with all applicable
laws.

                  7.25 Special Purpose Corporations. (a) Each of Holdings, and
Acquisition Corp. was formed to effect the Transaction. Prior to the
consummation of the Transaction, none of Holdings, or Acquisition Corp. had any
significant assets or liabilities.

                  (b)      Holdings has no significant assets (other than the
capital stock of the U.S. Borrower and immaterial assets used for the
performance of those activities permitted to be performed by Holdings pursuant
to Section 9.01(b)) or liabilities (other than under this Agreement and the
other Documents to which it is a party, those liabilities permitted to be
incurred by Holdings pursuant to Section 9.01(b) and, as and when issued from
time to time in accordance with the terms of this Agreement, under Shareholder
Subordinated Notes).

                                      -93-



                  (c)      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 Section 9.01(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 Section 9.01(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), same are promptly (and in any event
within one Business Day of receipt thereof) loaned, distributed and/or
contributed, subject to Section 9.01(d), to its Subsidiaries and/or Affiliates
in accordance with the requirements of Section 9.05 of this Agreement.

                  7.26 Subordination. (a) The subordination provisions contained
in the New Senior Notes Documents and the Existing Senior Notes Documents are
enforceable against the U.S. Subsidiary Guarantors party thereto and the holders
of the New Senior Notes and the Existing Senior Notes, and all Guaranteed
Obligations (as defined in the U.S. Subsidiaries Guaranty) of the U.S.
Subsidiary Guarantors are within the definitions of "Guarantor Senior Debt" and
"Designated Guarantor Senior Debt" included in such subordination provisions.

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

                  SECTION 8. Affirmative Covenants. Each Credit Agreement Party
hereby covenants and agrees that as of the Effective Date and thereafter for so
long as this Agreement is in effect and until the Total Commitment and all
Letters of Credit and Bank Guaranties have been terminated, and the Loans,
Notes, 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. Holdings will furnish, or will
cause to be furnished, to the Administrative Agent (who shall furnish to each
Lender):

                  (a)      Monthly Reports. Within 35 days after the end of each
         of the first two fiscal months of each Fiscal Quarter of Holdings
         (beginning with the 3rd Fiscal Quarter of Fiscal Year 2003), (x) a
         consolidated balance sheet of Holdings and its Consolidated
         Subsidiaries as at the end of such fiscal month and the related
         consolidated statements of income for such fiscal month and for the
         elapsed portion of the Fiscal Year ended with the last day of such
         fiscal month, in each case setting forth comparative figures for the
         corresponding fiscal month in the prior Fiscal Year (commencing with
         the delivery of monthly reports for the first fiscal month of Fiscal
         Year 2004), all of which shall be certified by the Chief Financial
         Officer or other Authorized Officer of Holdings that they fairly
         present in all material respects (on a basis consistent with the most
         recent annual financial statements and with the books and records of
         Holdings and its Consolidated

                                      -94-



         Subsidiaries) the financial condition of Holdings and its Consolidated
         Subsidiaries as of the dates indicated and the results of their
         operations for the periods indicated, subject to normal year-end audit
         adjustments and the absence of footnotes and (y) a consolidated balance
         sheet of each Business Segment as at the end of such fiscal month and
         the related consolidated statement of income of each Business Segment
         for such fiscal month and for the elapsed portion of the Fiscal Year
         ended with the last day of such fiscal month, in each case setting
         forth comparative figures for the corresponding fiscal month in the
         prior Fiscal Year (commencing with the delivery of monthly reports for
         the first fiscal month of Fiscal Year 2004).

                  (b)      Quarterly Financial Statements. Within 45 days after
         the close of the first three quarterly accounting periods in each
         Fiscal Year of Holdings, (i) (x) the consolidated balance sheet of
         Holdings 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 (commencing with the
         financial statements to be delivered in respect of the 1st Fiscal
         Quarter of Fiscal Year 2004) setting forth comparative figures for the
         corresponding quarterly accounting period in the prior Fiscal Year and
         the budgeted figures for such quarterly period as set forth in the
         respective financial projections theretofore delivered pursuant to
         Section 8.01(d) (unless such quarterly period occurs prior to the
         delivery (or required delivery) of the first financial projections
         pursuant to Section 8.01(d) which include such quarterly accounting
         period), (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 (commencing with the financial statements to be delivered in
         respect of the 1st Fiscal Quarter of Fiscal Year 2004) setting forth
         comparative figures for the corresponding quarterly accounting period
         in the prior Fiscal Year, and (z) commencing with the 3rd Fiscal
         Quarter of Fiscal Year 2003, the consolidated balance sheets of the
         U.S. Dole Group and the Non-U.S. Dole Group as at the end of such
         quarterly accounting period and the related consolidated statements of
         income of each such group for such quarterly accounting period and for
         the elapsed portion of the Fiscal Year ended with the last day of such
         quarterly accounting period, all of the foregoing of which shall be in
         reasonable detail and, in the case of the financial statements
         described in subclause (x) above, be certified by the senior financial
         officer or other Authorized Officer of Holdings that they fairly
         present in all material respects in accordance with U.S. GAAP the
         financial condition of Holdings 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.

                  (c)      Annual Financial Statements. Within 90 days after the
         close of each Fiscal Year of Holdings, (i) (x) the consolidated balance
         sheet of Holdings and its Consolidated Subsidiaries as at the end of
         such Fiscal Year and the related consolidated

                                      -95-



         statements of income and stockholders' equity and of cash flows for
         such Fiscal Year and (and commencing with the financial statements to
         be delivered in respect of Fiscal Year 2004) setting forth comparative
         consolidated figures for the preceding Fiscal Year and comparable
         budgeted figures for such Fiscal Year as set forth in the respective
         financial projections delivered pursuant to Section 8.01(d), (y) the
         consolidated balance sheet of each Business Segment as at the end of
         such Fiscal Year and the related consolidated statements of income of
         each Business Segment for such Fiscal Year and (commencing with the
         financial statements to be delivered in respect of Fiscal Year 2004)
         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 (commencing with the financial statements to be
         delivered in respect of Fiscal Year 2004) setting forth comparative
         consolidated figures for the preceding Fiscal Year, (ii) in the case of
         the financial statements referred to in subclause (i)(x) above (except
         for such comparable budgeted figures), together with a certification by
         Deloitte & Touche LLP or such other independent certified public
         accountants of recognized national standing as shall be acceptable to
         the Administrative Agent, in each case to the effect that (I) such
         statements fairly present in all material respects the financial
         condition of Holdings 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 Holdings 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 which has
         occurred and is continuing has come to their attention or, if such a
         Default or an Event of Default has come to their attention, a statement
         as to the nature thereof, and (iii) management's discussion and
         analysis of the important operational and financial developments during
         such Fiscal Year.

                  (d)      Financial Projections, etc. Not more than 45 days
         after the commencement of each Fiscal Year of Holdings (beginning with
         Fiscal Year 2004), 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 Holdings (i) for each
         of the four Fiscal Quarters of such Fiscal Year prepared in detail and
         (ii) for each of the immediately succeeding three Fiscal Years prepared
         in summary form, in each case, on a consolidated basis, for Holdings
         and its Consolidated Subsidiaries and setting forth, with appropriate
         discussion, the principal assumptions upon which such financial
         projections are based.

                  (e)      Officer's Certificates. At the time of the delivery
         of the financial statements provided for in Sections 8.01(a), (b) and
         (c), a certificate of the Chief Financial Officer or other Authorized
         Officer of Holdings 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(b)
         or (c), set forth (x) in reasonable detail the calculations required to
         establish whether Holdings and its Subsidiaries were in compliance

                                      -96-



         with the provisions of Sections 3.03, 4.02, 9.02, 9.04, 9.05, 9.06 and
         9.08 through and including 9.13 as at the end of such Fiscal Quarter or
         Fiscal Year, as the case may be, and (y) the calculation of the
         Leverage Ratio and the Bank Debt Leverage Ratio as at the last day of
         the respective Fiscal Quarter or Fiscal Year of Holdings, as the case
         may be, (ii) if delivered with the financial statements required by
         Section 8.01(c), set forth in reasonable detail the amount of (and the
         calculations required to establish the amount of) Excess Cash Flow for
         the respective Excess Cash Flow Payment Period 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 Initial Borrowing Date or, if later, since the date of the most
         recent certificate delivered pursuant to this Section 8.01(e), or if
         there have been any such changes, a list in reasonable detail of such
         changes (but, in each case with respect to this clause (iii), only to
         the extent that such changes are required to be reported to the
         Collateral Agent pursuant to the terms of such Security Documents) and
         whether the Credit Agreement Parties and the other Credit Parties have
         otherwise taken all actions required to be taken by them pursuant to
         such Security Documents in connection with any such changes.

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

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

                  (h)      Environmental Matters. Within five Business Days
         after a Senior Officer obtains knowledge of any of the following (but
         only to the extent that any of the following, either individually or in
         the aggregate, has had, or could reasonably be expected to have, (a) a
         Material Adverse Effect or (b) a remedial cost to Holdings or any of
         its Subsidiaries in excess of $5,000,000), written notice of:

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

                                      -97-



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

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

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

         All such notices shall describe in reasonable detail the nature of the
         claim, investigation, condition, occurrence or removal or remedial
         action and Holdings' response or proposed response thereto. In
         addition, the 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.

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

                  (j)      New Subsidiaries; etc. Within 45 days after the close
         of each of the first three Fiscal Quarters of each Fiscal Year of
         Holdings and within 90 days after the close of each Fiscal Year of
         Holdings, (w) a list showing each Material Foreign Subsidiary of
         Holdings which has not theretofore become party to the Foreign
         Subsidiaries Guaranty or any Security Document, (x) a list showing each
         Subsidiary of Holdings 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 naming the
         direct owner of all Equity Interests in such Subsidiary and describing
         such Equity Interests in reasonable detail, and certifying that each
         such Subsidiary, and each Credit Party which owns any Equity Interests
         therein, has taken all actions, if any, required pursuant to Sections
         8.11 and 9.17 and the relevant Security Documents and certifying
         Holdings' compliance with the provisions of Section 8.19, (y) a list of
         each Domestic Subsidiary of Holdings, if any, which has not been
         transferred to

                                      -98-



         Holdings or one or more Qualified U.S. Obligors pursuant to the
         requirements of Section 8.19(a) (by virtue of the first proviso to the
         second sentence of said Section 8.19(a)), and specifically stating the
         reasons therefor, and (z) a list of each Foreign Subsidiary organized
         under any Qualified Non-U.S. Jurisdiction, if any, which has not been
         transferred to one or more Qualified Non-U.S. Obligors pursuant to the
         requirements of Section 8.19(b) (by reason of the first proviso to the
         first sentence of said Section 8.19(b)), and specifically stating the
         reasons therefor.

                  (k)      Annual Meetings with Lenders. At the request of the
         Administrative Agent, Holdings shall, within 120 days after the close
         of each Fiscal Year of Holdings (beginning with the Fiscal Year ended
         nearest to December 31, 2003), hold a meeting (which may be by
         conference call or teleconference), at a time and place selected by
         Holdings and reasonably acceptable to the Administrative Agent, with
         all of the Lenders that choose to participate, to review the financial
         results of the previous Fiscal Year and the financial condition of
         Holdings and its Subsidiaries and the budgets presented for the current
         Fiscal Year of Holdings and its Subsidiaries.

                  (l)      Notice of Commitment Reductions and Mandatory
         Repayments. On or prior to the date of any reduction to Commitments or
         any mandatory repayment of outstanding Term Loans pursuant to Sections
         4.02(c) through (g), inclusive, Holdings or the U.S. Borrower shall
         provide written notice of the amount of the respective reduction or
         repayment, as the case may be, to the Commitments or the outstanding
         Term Loans, as applicable, and the calculations therefor (in reasonable
         detail).

                  (m)      Compliance with Section 13.19. On or prior to the
         90th day after the Initial Borrowing Date, an appropriate officer in
         the legal department of Holdings or the U.S. Borrower shall provide a
         written certification of compliance with all post-closing requirements
         set forth in Section 13.19 (including those actions required pursuant
         to Schedule XIV), specifically listing any items where such compliance
         has not yet occurred (and, with respect to any such items where
         compliance has not yet occurred, stating the time frame in which it is
         expected that such actions shall be taken and the reasons such actions
         have not been completed). Without excusing any failure to comply with
         Section 13.19, if the certification provided above does not establish
         complete compliance with all requirements of Section 13.19 (and
         Schedule XIV), Holdings or the U.S. Borrower shall cause an appropriate
         officer in its legal department to furnish monthly updates thereafter,
         in each case showing in reasonable detail all compliances (and any
         non-compliances) with the requirements of Section 13.19. Such
         certifications shall no longer be required after the date upon which
         Holdings or the U.S. Borrower certifies that all actions required be
         taken pursuant to Section 13.19 (and Schedule XIV) have been completed.

                  (n)      Hedging Arrangements. At the time of the delivery of
         the financial statements provided for in Sections 8.01(b) and (c), a
         schedule of all Interest Rate Protection Agreements and Other Hedging
         Agreements entered into by Holdings or any of its Subsidiaries with any
         Lender and/or any of its affiliates.

                  (o)      Other Information. From time to time, such other
information or documents (financial or otherwise) with respect to Holdings or
its Subsidiaries as the Administrative

                                      -99-



Agent or any Lender may reasonably request; provided that the tax opinion
delivered by Deloitte & Touche LLP pursuant to Section 5.20(f) shall only be
made available for review by any Lender requesting same at the headquarters of
Holdings.

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

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

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

                  (c)      If any Credit Agreement Party or any of its
Subsidiaries shall fail to maintain all insurance in accordance with this
Section 8.03, or if any Credit Agreement Party or any of its Subsidiaries shall
fail to so name the Collateral Agent as an additional insured, mortgagee or loss
payee, as the case may be, or so deposit all certificates with respect thereto,
the Administrative Agent and/or the Collateral Agent shall have the right (but
shall be under no obligation), upon ten Business Days' notice to Holdings or the
U.S. Borrower, to procure such

                                     -100-



insurance, and the Credit Agreement Parties agree jointly and severally to
reimburse the Administrative Agent or the Collateral Agent, as the case may be,
for all costs and expenses of procuring such insurance.

                  8.04 Payment of Taxes. Each Credit Agreement Party will pay
and discharge, and will cause each of its Subsidiaries to pay and discharge, all
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits, or upon any properties belonging to it, in each case on a
timely basis, and all lawful claims which, if unpaid, might become a lien or
charge upon any properties of the Credit Agreement Parties or any of their
Subsidiaries not otherwise permitted under Section 9.03(i); provided that no
Credit Agreement Party or any of its Subsidiaries shall be required to pay any
such tax, assessment, charge, levy or claim which is being contested in good
faith and by proper proceedings if it has maintained adequate reserves with
respect thereto in accordance with U.S. GAAP.

                  8.05 Existence; Franchises. Each Credit Agreement Party will
do, and will cause each of its Subsidiaries to do, or cause to be done, all
things necessary to preserve and keep in full force and effect its existence and
its material rights, franchises, authorities to do business, licenses,
certifications, accreditations and patents; provided, however, that nothing in
this Section 8.05 shall prevent (i) sales of assets and other transactions by
Holdings or any of its Subsidiaries in accordance with Section 9.02, (ii) the
withdrawal by Holdings or any of its Subsidiaries of its qualification as a
foreign corporation, partnership or limited liability company, as the case may
be, in any jurisdiction where such withdrawal could not, either individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect or
(iii) the dissolution of the Excluded Domestic Subsidiary or any Excluded
Foreign Subsidiary and; provided further, that this Section 8.05 shall not apply
to any Foreign Credit Party organized under the laws of Bermuda.

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

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

                  8.07 Compliance with Environmental Laws. (a) (i) Each Credit
Agreement Party will comply, and will cause each of its Subsidiaries to comply,
in all material respects with all Environmental Laws applicable to the ownership
or use of its Real Property and vessels now or hereafter owned, leased or
operated by such Credit Agreement Party or any of its Subsidiaries, will
promptly pay or cause to be paid all costs and expenses incurred in connection
with such compliance, and will keep or cause to be kept all such Real Property
and vessels free and clear of any Liens imposed pursuant to such Environmental
Laws and (ii) neither any Credit Agreement Party nor any of its Subsidiaries
will generate, use, treat, store, Release or dispose of, or permit

                                     -101-



the generation, use, treatment, storage, Release or disposal of, Hazardous
Materials on any Real Property or vessels owned, leased or operated by such
Credit Agreement Party or any of its Subsidiaries, or transport or permit the
transportation of Hazardous Materials to or from any such Real Property, except
as required in the ordinary course of business of Holdings and its Subsidiaries
as conducted on the Effective Date 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 Holdings or any of its Subsidiaries, or any tenant
or occupant of any Real Property or vessel owned, leased or operated by Holdings
or any of its Subsidiaries, causes or permits any intentional or unintentional
act or omission resulting in the presence or Release of any Hazardous Material
(except in compliance with applicable Environmental Laws), each Credit Agreement
Party agrees to undertake, and/or to cause any of its Subsidiaries, tenants or
occupants to undertake, at their sole expense, any clean up, removal, remedial
or other action required pursuant to Environmental Laws to remove and clean up
any Hazardous Materials from any Real Property or vessel except where the
failure to do so has not had, and could not reasonably be expected to have, a
Material Adverse Effect.

                  (b)      At the written request of the Administrative Agent or
the Required Lenders, which request shall specify in reasonable detail the basis
therefor (which may not simply be a desire for periodic review), at any time and
from time to time, the Credit Agreement Parties will provide, at their sole cost
and expense, an environmental site assessment report concerning any Real
Property now or hereafter owned, leased or operated by Holdings or any of its
Subsidiaries, prepared by an environmental consulting firm reasonably approved
by the Administrative Agent, addressing the matters which gave rise to such
request and estimating the potential costs of any removal, remedial or other
corrective action in connection with any such matter. If a Credit Agreement
Party fails to provide the same within 45 days after such request was made, the
Administrative Agent may order the same, and the Credit Agreement Parties shall
grant and hereby do grant, to the Administrative Agent and the Lenders and their
agents, access to such Real Property and specifically grant the Administrative
Agent and the Lenders and their agents an irrevocable non-exclusive license,
subject to the right of tenants, to undertake such an assessment, all at the
Credit Agreement Parties' joint and several expense.

                  8.08 ERISA. As soon as possible and, in any event, within
twenty (20) Business Days after Holdings, any Subsidiary of Holdings or any
ERISA Affiliate knows or has reason to know of the occurrence of any of the
following, Holdings will deliver to the Administrative Agent written notice of
the chief financial officer, vice president of human resources or other
Authorized Officer of the U.S. Borrower setting forth, to the extent known, and
in reasonable detail, such occurrence and the action, if any, that Holdings,
such Subsidiary or such ERISA Affiliate is required or proposes to take,
together with any notices required or proposed to be given to or filed by
Holdings, such Subsidiary, the Plan administrator or such ERISA Affiliate to or
with, the PBGC or any other governmental agency, or a Plan or Multiemployer Plan
participant, and any notices received by Holdings, such Subsidiary or ERISA
Affiliate from the PBGC or other governmental agency or a Plan or Multiemployer
Plan participant or the Plan administrator with respect thereto: that a
Reportable Event has occurred (except to the extent that Holdings has previously
delivered to the Administrative Agent a notice (if any) concerning such event
pursuant to the next clause hereof); that a contributing sponsor (as defined in
Section

                                     -102-



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 Holdings, any Subsidiary of Holdings or any ERISA Affiliate will or
may incur any material liability (including any indirect, contingent, or
secondary liability) to or on account of the termination of or withdrawal from a
Plan or Multiemployer Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or
4212 of ERISA or with respect to a Plan or Multiemployer Plan under Section
401(a)(29), 4971, 4975 or 4980 of the Code or Section 409 or 502(i) or 502(l) of
ERISA or with respect to a group health plan (as defined in Section 607(1) of
ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the Code; or
that Holdings or any Subsidiary of Holdings may incur any liability pursuant to
any employee welfare benefit plan (as defined in Section 3(1) of ERISA) that
provides benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or any Plan or any Foreign Pension Plan in
addition to the liability that existed on the Initial Borrowing Date pursuant to
any such plan or plans by an amount that would be material to Holdings or any
Subsidiary of Holdings. To the extent that the financial statements set forth
with particularity a liability for which notice would otherwise be required to
be given hereunder, a separate notice thereof shall not be required hereunder.
At the request of the Administrative Agent, Holdings and the 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. Holdings and 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 Holdings, any Subsidiary of Holdings or any ERISA
Affiliate with respect to any Plan or Foreign Pension Plan or received from any
government agency or plan administrator or sponsor or trustee with respect to
any Multiemployer Plan, shall, upon request of the Administrative Agent, be
delivered to the Administrative Agent no later than twenty (20) Business Days
after the date of such request. Holdings and each of its applicable Subsidiaries
shall ensure that all Foreign Pension Plans

                                     -103-



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

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

                  8.11 Additional Security. Additional Guaranties; Actions with
Respect to Non-Guarantor Subsidiaries; Further Assurances. (a) Each Credit
Agreement Party will, and will cause its Subsidiaries which are Credit Agreement
Parties or Subsidiary Guarantors to, grant to the Collateral Agent security
interests and mortgages (each, an "Additional Mortgage") in: (i) such fee-owned
(or the equivalent) Real Property acquired by such Person after the Initial
Borrowing Date and having a Fair Market Value in excess of $2,500,000 which is
not covered by the original Mortgages or Foreign Security Agreements, as
appropriate, and (ii) such Leasehold Properties to which a respective landlord
has granted its consent to the delivery of a Mortgage over such Leasehold
Properties (each such Real Property, an "Additional Mortgaged Property"). All
such Additional Mortgages shall be granted pursuant to documentation
substantially in the form of a relevant existing Mortgage or, in the case of
Additional Mortgaged Properties located in a jurisdiction outside the United
States, the relevant Foreign Security Agreement covering Real Property located
in such jurisdiction (if any) delivered to the Administrative Agent on the
Initial Borrowing Date or in such other form as is reasonably satisfactory to
the Administrative Agent and shall constitute valid and enforceable first
priority perfected Liens, superior to and prior to the rights of all third
Persons and subject to no other Liens (except as are permitted by Section 9.03),
in favor of the Collateral Agent (or such other trustee or sub-agent as may be
required or desired under local law). The Additional Mortgages or instruments
related thereto shall be duly recorded or filed in such manner and in such
places as are required by law to create, maintain, effect, perfect, preserve,
maintain and protect the Liens in favor of the Collateral Agent required to be
granted pursuant to the Additional Mortgages and all taxes, fees and other
charges payable in connection therewith shall be paid in full.

                  (b)      Each Credit Agreement Party will, and will cause each
of its Subsidiaries to, at its own expense, make, execute, endorse, acknowledge,
file and/or deliver to the Collateral Agent from time to time such vouchers,
invoices, schedules, confirmatory assignments, confirm-

                                     -104-



atory conveyances, financing statements, transfer endorsements, confirmatory
powers of attorney, certificates, reports and other assurances or confirmatory
instruments and take such further steps relating to the Collateral covered by
any of the Security Documents as the Collateral Agent may reasonably require
pursuant to this Section 8.11. Furthermore, each Credit Agreement Party will
cause to be delivered to the Collateral Agent such opinions of counsel and other
related documents as may be reasonably requested by the Collateral Agent to
assure itself that this Section 8.11 has been complied with.

                  (c)      Subject to the provisions of following clauses (g)
and (h), if (w) at any time any Domestic Subsidiary of Holdings is created,
established or acquired, such Subsidiary shall be required to execute and
deliver counterparts of the U.S. Subsidiaries Guaranty, the Intercompany
Subordination Agreement and such Security Documents as would have been entered
into by the respective Subsidiary if same had been a U.S. Subsidiary Guarantor
on the Initial Borrowing Date, and in each case shall take all action in
connection therewith as would otherwise have been required to be taken pursuant
to Section 5 if such Subsidiary had been a U.S. Subsidiary Guarantor on the
Initial Borrowing Date, (x) at any time any Subsidiary of Holdings 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 would have been entered into by the respective
Subsidiary if same had been a Foreign Subsidiary Guarantor on the Initial
Borrowing Date (determined in accordance with the criteria described in Sections
5.15, 5.17 and 5.18(b)), and in each case shall take all action in connection
therewith as would otherwise have been required to be taken pursuant to Section
5 if such Subsidiary had been a Foreign Subsidiary Guarantor on the Initial
Borrowing Date, (y) at any time any Subsidiary of Holdings organized under the
laws of any Non-Qualified Jurisdiction in which a Foreign Subsidiary Guarantor
was organized on the Initial Borrowing 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 would have been entered
into by the respective Subsidiary if same had been a Foreign Subsidiary
Guarantor organized under the laws of such Non-Qualified Jurisdiction on the
Initial Borrowing Date (determined in accordance with the criteria described in
Sections 5.15, 5.17 and 5.18(b)), and in each case shall take all action in
connection therewith as would otherwise have been required to be taken pursuant
to Section 5 if such Subsidiary had been a Foreign Subsidiary Guarantor
organized under the laws of such Non-Qualified Jurisdiction on the Initial
Borrowing Date and (z) if at any time after the Initial Borrowing 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 Foreign Subsidiary of Holdings organized under the laws of such Qualified
Jurisdiction (with such exceptions as may be satisfactory to the Administrative
Agent or the Required Lenders) shall be required to become a Foreign Subsidiary
Guarantor and take all actions specified in preceding clause (x). Furthermore,
subject to the provisions of the following clause (h), the Administrative Agent
or the Required Lenders may at any time request that one or more Subsidiaries of
Holdings organized under the laws of one or more jurisdictions which are not
Qualified Jurisdictions become Foreign Subsidiary Guarantors, in which case the
Credit Agreement Parties shall cause each such Subsidiary which has been
specifically requested to become a Foreign Subsidiary Guarantor to take all
actions as are specified in clause (x) of the immediately preceding sentence,

                                     -105-



provided that no Subsidiary of Holdings shall be required to take such actions
if, and to the extent that, based upon written advice of local counsel
reasonably satisfactory to the Administrative Agent, Holdings and/or such
Subsidiary concludes that the taking of such actions would violate the laws of
the jurisdiction in which the respective Subsidiary is organized, provided
further, that if steps (such as limiting the amount guaranteed) can be taken so
that such violation would not exist, then if requested by the Administrative
Agent or the Required Lenders, the respective Subsidiary shall enter into a
modified Foreign Subsidiaries Guaranty which provides, to the maximum extent
permissible under applicable law, as many of the benefits as are provided
pursuant to the Foreign Subsidiaries Guaranty executed and delivered on the
Initial Borrowing Date as is possible.

                  (d)      In addition to the requirements contained in the
Pledge Agreements, each Credit Agreement Party agrees to pledge and deliver, or
cause to be pledged and delivered, all of the Equity Interests owned by any
Credit Party of each new Unrestricted Subsidiary of Holdings established or
created (and each Subsidiary of Holdings which becomes an Unrestricted
Subsidiary) after the Initial Borrowing Date to the Collateral Agent for the
benefit of the Secured Creditors pursuant to the Pledge Agreements, provided
that, subject to the provisions of Section 8.12, in the case of any Foreign
Unrestricted Subsidiary that is a corporation (or treated as such for U.S. tax
purposes) which is owned by a 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 obligations (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. Credit Parties).

                  (e)      Following any request by the Administrative Agent or
the Required Lenders, Holdings or any of its Subsidiaries, shall, to the maximum
extent permitted by applicable law (but subject to the proviso to preceding
clause (d), to the extent applicable), (x) grant security interests in such of
their Property (other than Excluded Collateral) as may be requested by the
Administrative Agent or the Required Lenders, as the case may be, in which
perfected security interests do not already exist pursuant to the Security
Documents theretofore executed and delivered and, in connection therewith, the
Credit Agreement Parties shall, or shall cause the relevant Subsidiaries of
Holdings to, execute and deliver counterparts of (and thereby become parties to)
the applicable Security Documents and/or Additional Security Documents, in each
case in form and substance reasonably satisfactory to the Administrative Agent
and/or (y) with respect to pledges of Equity Interests of, or promissory notes
issued by, Persons described in Section 13.20, take such action (including,
without limitation, the execution of Additional Security Documents, the making
of filings, etc.) under the local law of the Person whose Equity Interests or
promissory notes are pledged as may be requested in order to create, preserve,
protect or perfect security interests in such Equity Interests and/or promissory
notes.

                  (f)      The security interests required to be granted
pursuant to Sections 8.11(c), (d) and (e) shall be granted pursuant to the
respective Security Documents already executed and delivered by the Credit
Parties (or other security documentation substantially similar to such Security
Documents or otherwise reasonably satisfactory in form and substance to the
Collateral Agent) and shall constitute valid and enforceable first priority
perfected security interests prior to the rights of all third Persons and
subject to no other Liens (other than Permitted Lines). The Credit Agreement
Parties shall (or shall cause their respective Subsidiaries), (i) at their own

                                     -106-



expense, to (x) execute, acknowledge and deliver, or cause the execution,
acknowledgment and delivery of, and thereafter register, file or record in any
appropriate governmental office, any document or instrument reasonably deemed by
the Collateral Agent to be necessary or desirable for the creation, perfection,
maintenance, preservation and protection of the Liens on its assets intended to
be created pursuant to the relevant Security Documents and (y) take all other
actions reasonably requested by the Collateral Agent (including, without
limitation, the furnishing of legal opinions) in connection with the granting of
the security interests required pursuant to Sections 8.11(c), (d) and (e) and
(ii) pay in full all taxes, fees and other charges payable in connection with
the granting of the security interests required pursuant to Sections 8.11(c),
(d) and (e).

                  (g)      Each Credit Agreement Party agrees that each action
required above by Section 8.11(a) or (b) shall be completed as soon as possible,
but in no event later than 60 days (or, in the case of actions relating to
assets located outside the United States, such greater number of days (not to
exceed 90 days) as the Administrative Agent shall agree to in its sole and
absolute discretion in any given case) after such action is requested to be
taken by the Administrative Agent or the Required Lenders. Each Credit Agreement
Party further agrees that (x) each action required above by Section 8.11(c), (d)
and (f) with respect to a newly formed, created or acquired Subsidiary, or with
respect to any Subsidiary which is located in a jurisdiction newly-designated as
a Qualified Jurisdiction or which becomes an Unrestricted Subsidiary, shall be
completed contemporaneously with the formation, creation or acquisition of such
Subsidiary, the date of the addition of the respective jurisdiction to the list
of Qualified Jurisdictions or the date such Subsidiary becomes an Unrestricted
Subsidiary, as the case may be, (provided that, in the case of a Shell
Corporation formed, created or established by the U.S. Borrower or any of its
Subsidiaries, such actions shall not be required to be taken (so long as same
remains a Shell Corporation) until 60 days after the formation, creation or
establishment of such Shell Corporation) and (y) all actions required to be
taken pursuant to the last sentence of Section 8.11(c) and Section 8.11(e) shall
be taken as promptly as practicable, and in any event within 45 days, after
Holdings or the U.S. Borrower receives the respective request from the
Administrative Agent or the Required Lenders.

                  (h)      Notwithstanding anything to the contrary contained in
clauses (c) through (g) above, to the extent the taking of any action as
described above by a new Subsidiary acquired 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(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. To the extent the terms of any Permitted Acquired Debt prohibits
the taking of actions otherwise required by this Section 8.11, upon the request
of the Administrative Agent or the Required Lenders, each Credit Agreement Party
shall, or shall cause the respective Subsidiaries of Holdings to, (x) prepay any
such Permitted Acquired Debt which is permitted to be prepaid and/or (y) use
reasonable efforts to obtain such consents or approvals as are needed so that
the taking of the actions otherwise specified in this Section 8.11 would not
violate the terms of the respective issue of Permitted

                                     -107-



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) or as a
result of Investments made pursuant to Section 9.05(xiv), then for so long as
such Subsidiary is not a Wholly-Owned Subsidiary, to the extent Holdings in good
faith determines that the respective Subsidiary is not able, under applicable
requirements of law (whether because of fiduciary duties under applicable law or
other requirements of applicable law) to execute and deliver a Subsidiaries
Guaranty or one or more Security Documents, the respective such Subsidiary shall
not be required to become a Subsidiary Guarantor or execute and deliver such
Security Documents as otherwise required above.

                  (i)      Within 30 days following the request of the
Administrative Agent, the Collateral Agent or the Required Lenders, the Credit
Agreement Parties 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, notorial 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.

                  (j)      In the event that the Administrative Agent or the
Required Lenders at any time after the Initial Borrowing Date determine in their
reasonable discretion (whether as a result of a position taken by an applicable
bank regulatory agency or official, or otherwise) that real estate appraisals
satisfying the requirements set forth in 12 C.F.R., Part 34-Subpart C, or any
successor or similar statute, role, regulation, guideline or order (any such
appraisal, a "Required Appraisal") are or were required to be obtained, or
should be obtained, in connection with any 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, Holdings shall cause such Required Appraisal to be delivered, at the expense
of Holdings, to the Administrative Agent, which Required Appraisal, and the
respective appraiser, shall be satisfactory to the Administrative Agent.

                  8.12 Foreign Subsidiaries Security. If following a change in
the relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for
Holdings reasonably acceptable to the Administrative Agent and the Required
Lenders does not within 30 days after a request from the Administrative Agent or
the Required Lenders deliver evidence, in form and substance reasonably
satisfactory to the Administrative Agent and the Required Lenders, that (i) a
pledge of 66-2/3% or more of the total combined voting power of all classes of
Equity Interests entitled to vote of any Foreign Unrestricted Subsidiary owned
by a U.S. Credit Party which has not already had all of its Equity Interests
pledged pursuant to the U.S. Pledge Agreement or a Local Law Pledge Agreement,
as applicable, to secure all of the Obligations (as defined in the respective
such Security Document), (ii) the entering into by a Foreign Subsidiary
Guarantor of a pledge agreement in substantially the form of the U.S. Pledge
Agreement, (iii) the entering into by a Foreign Subsidiary Guarantor of a
security agreement in substantially the form of the U.S. Security Agreement and
(iv) the entering into by a Foreign Subsidiary Guarantor of a guaranty in
substan-

                                     -108-



tially the form of the U.S. Subsidiaries Guaranty, in any such case would
cause the undistributed earnings of such Foreign Subsidiary as determined for
Federal income tax purposes to be treated as a deemed dividend to such Foreign
Subsidiary's United States parent or a deemed disposition of the shares of stock
of such Foreign Subsidiary for Federal income tax purposes, then (I) in the case
of a failure to deliver the evidence described in clause (i) above, that portion
of such Foreign Unrestricted Subsidiary's outstanding Equity Interests owned or
held by a U.S. Credit Party and not theretofore pledged pursuant to the U.S.
Pledge Agreement or a Local Law Pledge Agreement, as applicable, to secure all
of the Obligations (as defined in the respective such Security Document) shall
be pledged to the Collateral Agent for the benefit of the Secured Creditors
pursuant to the U.S. Pledge Agreement or the relevant Local Law Pledge Agreement
(or another pledge agreement in substantially similar form, if needed), (II) in
the case of a failure to deliver the evidence described in clause (ii) above,
such Foreign Subsidiary Guarantor shall execute and deliver the U.S. Pledge
Agreement (or another pledge agreement in substantially similar form, if
needed), granting to the Collateral Agent for the benefit of the Secured
Creditors a security interest in all of the capital stock, other Equity
Interests and promissory notes owned by such Foreign Subsidiary (other than
Excluded Collateral) and securing the Obligations of the U.S. Borrower under the
Credit Documents and under any Interest Rate Protection Agreement or Other
Hedging Agreement and, in the event the U.S. Subsidiaries Guaranty shall have
been executed by such Foreign Subsidiary Guarantor, the obligations of such
Foreign Subsidiary Guarantor thereunder, (III) in the case of a failure to
deliver the evidence described in clause (iii) above, such Foreign Subsidiary
Guarantor shall execute and deliver the U.S. Security Agreement (or another
security agreement in substantially similar form, if needed) granting to the
Collateral Agent for the benefit of the Secured Creditors a security interest in
all of such Foreign Subsidiary Guarantor's assets (other than the capital stock,
other Equity Interests and promissory notes owned by such Foreign Subsidiary and
such assets which constitute Excluded Collateral) and securing the obligations
of the U.S. Borrower under the Credit Documents and under any Interest Rate
Protection Agreement or Other Hedging Agreement and, in the event the U.S.
Subsidiaries Guaranty shall have been executed by such Foreign Subsidiary
Guarantor, the obligations of such Foreign Subsidiary Guarantor thereunder, and
(IV) in the case of a failure to deliver the evidence described in clause (iv)
above, such Foreign Subsidiary Guarantor shall execute and deliver the U.S.
Subsidiaries Guaranty (or another guaranty in substantially similar form, if
needed), guaranteeing the Obligations of the U.S. Borrower under the Credit
Documents and under any Interest Rate Protection Agreement or Other Hedging
Agreement, in each case to the extent that the entering into of the U.S. Pledge
Agreement, the U.S. Security Agreement or the U.S. Subsidiaries Guaranty (or
similar such agreement or guaranty) is permitted by the laws of the respective
foreign jurisdiction and with all documents delivered pursuant to this Section
8.12 to be in form and substance reasonably satisfactory to the Administrative
Agent and/or the Required Lenders. Notwithstanding anything to the contrary
contained in this Section 8.12, no Foreign Subsidiary shall be required to
comply with the provisions of this Section 8.12 if the tax advisors for Holdings
or such Subsidiary determine that there is a reasonable likelihood that such
Foreign Subsidiary is, or has ever been, a passive foreign investment company
within the meaning of Section 1297 of the Code.

                  8.13 Use of Proceeds. Holdings will, and will cause each of
its Subsidiaries to, use the proceeds of the Loans for the purposes specified in
Section 7.05. No Credit Agreement Party 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

                                     -109-



approved and recommended by the board of directors (or functional equivalent
thereof) or the requisite shareholders of such Person.

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

                  (b)      Holdings shall at all times own, directly or
indirectly, 100% of the capital stock or other Equity Interests of its
Subsidiaries (except to the extent (v) with respect to Foreign Subsidiaries,
directors' qualifying shares and other nominal amounts of shares required by
applicable law to be held by Persons (other than directors) are issued from time
to time (so long as the respective Subsidiary continues to constitute a
Wholly-Owned Subsidiary of Holdings), (w) 100% of the capital stock or other
Equity Interests of any such Subsidiary are sold, transferred or otherwise
disposed of pursuant to a transaction permitted by Section 9.02, (x) less than
100% of the capital stock or other Equity Interests are acquired in the
respective Subsidiary pursuant to a Permitted Acquisition which meets the
criteria specified in the definition of Permitted Acquisition contained herein,
(y) such capital stock or other Equity Interests are acquired pursuant to an
Investment permitted by Sections 9.05(xvi) and (xx) or (z) set forth on Schedule
VII).

                  8.15 Permitted Acquisitions. (a) Subject to the provisions of
this Section 8.15 and the requirements contained in the definition of Permitted
Acquisition, the U.S. Borrower and any of its Wholly-Owned Subsidiaries may from
time to time effect Permitted Acquisitions, so long as (in each case except to
the extent the Required Lenders otherwise specifically agree in writing in the
case of a specific Permitted Acquisition): (i) no Default 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; (ii) the U.S. Borrower
shall have given the Administrative Agent (on behalf of the Lenders) at least 10
Business Days' prior written notice of the proposed Permitted Acquisition; (iii)
calculations are made by the U.S. Borrower of compliance with the covenants
contained in Sections 9.08, 9.09, 9.10, 9.11 and 9.13 for the respective
Calculation Period on a Pro Forma Basis as if the respective Permitted
Acquisition (as well as all other Permitted Acquisitions and Significant Asset
Sales theretofore consummated after the first day of such Calculation Period)
had occurred on the first day of such Calculation Period, and such calculations
shall show that such financial covenants would have been complied with if the
Permitted Acquisition had occurred on the first day of such Calculation Period
(for this purpose, if the first day of the respective Calculation Period occurs
prior to the Initial Borrowing Date, calculated as if the covenants contained in
said Sections 9.08, 9.09, 9.10, 9.11 and 9.13 had been applicable from the first
day of the Calculation Period), (iv) based on good faith projections prepared by
the U.S. Borrower for the period from the date of the consummation of the
respective Permitted Acquisition to the date which is one year thereafter, the
level of financial performance measured by the financial covenants set forth in
Sections 9.08, 9.09, 9.10, 9.11 and 9.13 shall be better than or equal to such
level as would be required to

                                     -110-



provide that no Event of Default would exist under the financial covenants
contained in such Sections 9.08, 9.09, 9.10, 9.11 and 9.13 as compliance with
such financial covenants would be required through the date which is one year
from the date of the consummation of the respective Permitted Acquisition; (v)
all representations and warranties contained herein and in the other Credit
Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on and as of
the date of such Permitted Acquisition (both before and after giving effect
thereto), unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date; (vi) the U.S. Borrower provides to the
Administrative Agent (on behalf of the Lenders) as soon as available but not
later than 5 Business Days after the execution thereof, a copy of any executed
purchase agreement or similar agreement with respect to such Permitted
Acquisition; (vii) the Maximum Permitted Consideration payable in connection
with the proposed Permitted Acquisition (for such purpose, treating any related
Permitted Acquisitions theretofore effected as a single Permitted Acquisition)
does not exceed $50,000,000; provided that on the date of delivery to the
Administrative Agent (on behalf of the Lenders) by the U.S. Borrower of an
officer's certificate in connection with a proposed Permitted Acquisition
(together with related calculations) showing compliance with a Leverage Ratio of
3.75:1.0 or less at such time, determined on a Pro Forma Basis as if the
respective Permitted Acquisition (as well as all other Permitted Acquisitions
and Significant Asset Sales theretofore consummated after the first day of the
Calculation Period then last ended) had occurred on the first day of such
Calculation Period, the $50,000,000 basket amount set forth above in this clause
(vii) shall be increased to $100,000,000; (viii) after giving effect to such
Permitted Acquisition and the payment of all post-closing purchase price
adjustments required (in the good faith determination of Holdings) in connection
with such Permitted Acquisition (and all other Permitted Acquisitions for which
such purchase price adjustments may be required to be made) and all capital
expenditures (and the financing thereof) reasonably anticipated by Holdings to
be made in the business acquired pursuant to such Permitted Acquisition within
the 180-day period (such period for any Permitted Acquisition, a "Post-Closing
Period") following such Permitted Acquisition (and in the businesses acquired
pursuant to all other Permitted Acquisitions with Post-Closing Periods ended
during the Post-Closing Period of such Permitted Acquisition), the Total
Unutilized Revolving Loan Commitment shall equal or exceed $75,000,000; (ix)
such proposed Permitted Acquisition shall be effected in accordance with the
relevant requirements of Section 8.19; (x) the U.S. Borrower determines in good
faith that Holdings and its Subsidiaries taken as a whole are not likely to
assume or become liable for material increased contingent liabilities as a
result of such proposed Permitted Acquisition (excluding, however, Indebtedness
permitted to be incurred pursuant to Section 9.04 in connection therewith); (xi)
substantially all of the Acquired Entity or Business acquired pursuant to the
respective Permitted Acquisition is in a Qualified Jurisdiction (for such
purpose, treating as "Qualified Jurisdictions" the jurisdictions of organization
of Fee Capped Foreign Subsidiary Guarantors deemed to be "Qualified Non-U.S.
Obligors" pursuant to clause (i) of the proviso appearing in the definition of
"Qualified Non-U.S. Obligors"), provided, however, the respective proposed
Permitted Acquisition shall not be required to meet the requirements set forth
above in this clause (xi) if the Maximum Permitted Consideration payable in
connection with such Permitted Acquisition, when aggregated with the Maximum
Permitted Consideration payable in connection with all other Permitted
Acquisitions consummated after the Effective Date in which all or substantially
all of the Acquired Entity or Business so acquired were not in Qualified
Jurisdictions, does not

                                     -111-



exceed $200,000,000; and (xii) the U.S. Borrower shall have delivered to the
Administrative Agent on the date of the consummation of such proposed Permitted
Acquisition, an officer's certificate executed by an Authorized Officer of the
U.S. Borrower, certifying to the best of his knowledge, compliance with the
requirements of preceding clauses (i) through (v), inclusive, and clauses (vii)
through (xi), inclusive, and containing the calculations required by the
preceding clauses (iii), (iv), (vi), (vii), (viii) and (xi).

                  At the time of each Permitted Acquisition involving the
creation or acquisition of an Unrestricted Subsidiary, or the acquisition of
capital stock or other Equity Interests of any Person (other than a Restricted
Subsidiary of the U.S. Borrower), all capital stock or other Equity Interests
thereof created or acquired in connection with such Permitted Acquisition shall
be pledged for the benefit of the Secured Creditors as, and to the extent
required by, Section 8.11 and the relevant Security Documents.

                  Each Credit Agreement Party shall cause each Subsidiary that
is formed to effect, or is acquired pursuant to, a Permitted Acquisition to
comply with, and to execute and deliver, all of the documentation required by,
Sections 8.11 and 9.17, to the satisfaction of the Administrative Agent.

                  The consummation of each Permitted Acquisition shall be deemed
to be a representation and warranty by each Credit Agreement Party that the
certifications by each Credit Agreement Party (or by one or more of its
respective Authorized Officers) pursuant to Section 8.15 are true and correct
and that all conditions thereto have been satisfied and that same is permitted
in accordance with the terms of this Agreement, which representation and
warranty shall be deemed to be a representation and warranty for all purposes
hereunder, including, without limitation, Sections 6 and 10.

                  8.16 Maintenance of Company Separateness. Each Credit
Agreement Party will, and will cause each of its Subsidiaries to, satisfy
customary Company formalities, including the holding of regular board of
directors' and shareholders' meetings or action by directors or shareholders
without a meeting and the maintenance of Company records. Neither Holdings nor
any other Credit Party shall make any payment to a creditor of any Non-Guarantor
Subsidiary in respect of any liability of any Non-Guarantor Subsidiary, and no
bank account of any Non-Guarantor Subsidiary shall be commingled with any bank
account of Holdings or any other Credit Party. Any financial statements
distributed to any creditors of any Non-Guarantor Subsidiary shall clearly
establish or indicate the corporate separateness of such Non-Guarantor
Subsidiary from Holdings and its other Subsidiaries. Finally, neither Holdings
nor any of its Subsidiaries shall take any action, or conduct its affairs in a
manner, which is likely to result in the Company existence of any Credit
Agreement Party, any other Credit Party or any Non-Guarantor Subsidiaries being
ignored, or in the assets and liabilities of Holdings or any other Credit Party
being substantively consolidated with those of any other such Person or any
Non-Guarantor Subsidiary in a bankruptcy, reorganization or other insolvency
proceeding; provided, that no Foreign Credit Party organized under the laws of
Bermuda shall be bound by the provisions of the last sentence of this Section
8.16.

                  8.17 Foreign Exchange Protection. No later than the 90th day
after the Initial Borrowing Date, the Borrowers shall have delivered to the
Agents a currency risk management

                                     -112-



policy report detailing the foreign currency risk with respect to the operations
of Holdings and its Subsidiaries, which report (and the risks detailed therein)
shall be in form and substance reasonably satisfactory in all respects to the
Agents.

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

                  8.19 Conduct of Business. (a) The Credit Agreement Parties
shall take all actions so that, at all times from and after the Initial
Borrowing Date, all the assets of Holdings and its Subsidiaries located within
the United States, all Equity Interests in all Domestic Subsidiaries or other
U.S. Persons and all or substantially all of the business of Holdings and its
Subsidiaries conducted in the United States, are, in each case, owned or
conducted, as the case may be, by Holdings and one or more Qualified U.S.
Obligors which are not direct or indirect Subsidiaries of any Subsidiary of
Holdings which is a Foreign Subsidiary, provided that if a Foreign Subsidiary
(not itself created or established in contemplation of a Permitted Acquisition)
is acquired pursuant to a Permitted Acquisition which Foreign Subsidiary has
(either directly or through one or more Domestic Subsidiaries) assets or
operations in the United States, Holdings shall have a reasonable period of time
(not to exceed 60 days) to effect the transfer of U.S. assets and operations
(including all Equity Interests in any Domestic Subsidiaries or other U.S.
Persons held by it) of the respective Foreign Subsidiary to one or more
Qualified U.S. Obligors, provided further, that the respective transfer shall
not be required to be made if Holdings in good faith determines that such
transfer would give rise to adverse tax consequences to Holdings and its
Subsidiaries or would give rise to any material breach or violation of law or
contract (in which case, Holdings and its Subsidiaries shall transfer such
assets and operations at such time, if any, as such adverse tax consequences or
breach or violation would not exist and, until such time, shall use good faith
efforts so that any growth in the assets or operations of the entity so
acquired, to the extent located in the United States, are made within one or
more Qualified U.S. Obligors).

                  (b)      In addition to the foregoing requirements, the Credit
Agreement Parties shall take all actions so that, at all times from and after
the Initial Borrowing Date, all the assets of Holdings' Subsidiaries located
within all Qualified Non-U.S. Jurisdictions, all Equity Interests in all Persons
organized under any Qualified Non-U.S. Jurisdiction and all or substantially all
of the business of Holdings' Subsidiaries conducted in all Qualified Non-U.S.
Jurisdictions, are, in each case, owned or conducted, as the case may be, by one
or more Qualified Non-U.S. Obligors which are not direct or indirect
Subsidiaries of any Subsidiary of Holdings other than Qualified Obligors,
provided that if a Subsidiary of Holdings organized under the laws of a
jurisdiction other than any Qualified Non-U.S. Jurisdiction (not itself created
or established in contemplation of the respective Permitted Acquisition) is
acquired pursuant to a Permitted Acquisition which Subsidiary has (either
directly or through one or more Subsidiaries) assets or operations outside
Qualified Non-U.S. Jurisdictions, Holdings shall have a reasonable period of
time (not to exceed 60 days) to effect the transfer of all assets and operations
outside Qualified Non-U.S. Jurisdictions (including all Equity Interests in any
Persons held by it which are organized under

                                     -113-



the laws of one or more Qualified Non-U.S. Jurisdiction) of the respective
Subsidiary to one or more Qualified Non-U.S. Obligors which are not themselves
direct or indirect Subsidiaries of any Subsidiary of Holdings other than
Qualified Obligors, provided further, that the respective transfer shall not be
required to be made if Holdings in good faith determines that such transfer
would give rise to adverse tax consequences to Holdings and its Subsidiaries or
would give rise to any material breach or violation of law or contract (in which
case, Holdings and its Subsidiaries shall transfer such assets and operations at
such time, if any, as such adverse tax consequences or breach or violation would
not exist, and until such time shall use good faith efforts so that any growth
in the assets or operations of the entity so acquired, to the extent located in
the Qualified Non-U.S. Jurisdictions, are made within one or more Qualified
Non-U.S. Obligors which are not themselves direct or indirect Subsidiaries of
any Subsidiary of Holdings other than Qualified Obligors). Notwithstanding the
foregoing provisions of this Section 8.19(b), the ownership of the Bermuda
Partnership (a Subsidiary which is not a Qualified Non-U.S. Obligor) of Equity
Interests of Qualified Non-U.S. Obligors shall not be taken account of for
purposes of determining compliance with this Section 8.19(b), so long as the
Credit Agreement Parties and their respective Foreign Subsidiaries are at all
times in compliance with Section 8.19(c) below.

                  (c)      The Credit Agreement Parties 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 8.19 shall not prohibit the
acquisition of, or Investments in, Non-Wholly-Owned Subsidiaries as contemplated
by Section 9.17(b), provided that the Equity Interest owned by Holdings or any
of its Subsidiaries in such Non-Wholly-Owned Subsidiaries, to the extent
organized under the laws of any Qualified Jurisdiction, shall be subject to the
requirements of preceding clauses (a), (b) and (c).

                  8.20 Contributions; Payments. (a) Holdings will contribute as
an equity contribution to the capital of the U.S. Borrower upon its receipt
thereof, any cash proceeds (net of reasonable costs associated with such sale or
issuance) received by Holdings from any sale or issuance of its Equity Interests
or any cash capital contributions received by Holdings.

                  (b)      The U.S. Borrower will use the proceeds of all equity
contributions received by it from Holdings as provided in clause (a) above to
repay Loans as, and to the extent required by, Section 4.02 and/or to cause a
portion thereof to be made available to the Bermuda Borrower (by way of
Investment) for the purpose of repaying Loans as, and to the extent required by,
Section 4.02.

                  (c)      The Bermuda Borrower will use proceeds of all
Investments received by it from the U.S. Borrower (directly or indirectly
through other Subsidiaries of Holdings) as contemplated by Section 8.20(b) to
repay Loans as, and to the extent required by, Section 4.02.

                  8.21 Post-Closing Refinancing. Within 60 days following the
Initial Borrowing Date, Holdings and the U.S. Borrower shall have consummated
the Post-Closing Refinancing in

                                     -114-



accordance with the relevant Existing Senior Notes Indentures, the Refinancing
Documents therefor and all applicable laws.

                  8.22 Asset Sale Requirements. The Credit Agreement Parties
shall, and shall cause their respective Domestic Subsidiaries to, effect
Contemplated Asset Sales in accordance with the requirements of Section
9.02(xviii) which shall generate Net Sale Proceeds of at least $150.0 million
during the period commencing on March 29, 2003 and ending on December 31, 2005,
provided that at least $100.0 million of such Net Sale Proceeds shall have been
generated by Contemplated Asset Sales effected on or prior to December 31, 2004;
provided further, however, that (i) the amount of the Net Sale Proceeds required
to be generated from Contemplated Asset Sales pursuant to this Section 8.22
during any period contemplated above shall be reduced on a dollar-for-dollar
basis by the amount of any cash capital contributions made to Holdings
(including pursuant to the Capital Call Agreement), to the extent such cash
proceeds are actually applied as a mandatory repayment and/or commitment
reduction in accordance with the requirements of Section 4.02(e), (ii) the
amount of the Net Sale Proceeds required to be generated from Contemplated Asset
Sales pursuant to this Section 8.22 during any period contemplated above shall
be reduced on a dollar-for-dollar basis by an amount equal to 50% of the
aggregate principal amount of Term Loans repaid in accordance with the
requirements of Section 4.01 during such period (except to the extent
constituting a notified voluntary repayment of Term Loans giving rise to a
reduction as contemplated by subclause (iii)(I) below), and (iii) the amount of
the Net Sale Proceeds required to be generated from Contemplated Asset Sales
pursuant to this Section 8.22 during any period contemplated above shall be
reduced on a dollar-for-dollar basis by the sum of (I) the amount of cash (not
to exceed the Retained Excess Cash Flow Amount then in effect) actually used to
repay Term Loans pursuant to Section 4.01 during such period (and notified to
the Administrative Agent as having been so used for the purpose of reducing the
amount of the Net Sale Proceeds required from Contemplated Asset Sales as
otherwise provided above) plus (II) in the event that the Applicable Prepayment
Percentage of Excess Cash Flow used to determine any required payment made
pursuant to Section 4.02(g) during such period is 75%, the amount of cash (not
to exceed 25% of Excess Cash Flow for the relevant Excess Cash Flow Payment
Period) actually applied as a mandatory repayment and/or commitment reduction in
accordance with the requirements of Section 4.02(g) during such period.

                  8.23 Margin Stock. Each Credit Agreement Party shall take all
actions so that at all times the fair market value of all Margin Stock (other
than treasury stock) owned by Holdings and its Subsidiaries shall not exceed
$2,500,000 (or, if the fair market value of Margin Stock owned by Holdings and
its Subsidiaries exceeds $2,500,000 solely as a result of an increase in the
trading price of such Margin Stock (and not as a result of supplemental
purchases of Margin Stock), the lesser of (x) the fair market value of all such
Margin Stock and (y) $10,000,000). So long as the fair market value of Margin
Stock owned by Holdings and its Subsidiaries does not exceed $10,000,000, all
Margin Stock at any time owned by Holdings and its Subsidiaries shall not
constitute Collateral and no security interest shall be granted therein pursuant
to any Credit Document. Without excusing any violation of the first sentence of
this Section 8.23, if at any time the fair market value of all Margin Stock
(other than treasury stock) owned by Holdings and its Subsidiaries 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

                                     -115-



to the Lenders appropriate completed forms (including, without limitation, Forms
G-3 and U-1, as appropriate) establishing compliance with the Margin
Regulations. If at any time any Margin Stock is required to be pledged as a
result of the provisions of the immediately preceding sentence, repayments of
outstanding Obligations shall be required to be made, and subsequent Credit
Events shall only be permitted, in compliance with the applicable provisions of
the Margin Regulations.

                  8.24 Special Provisions Regarding Special Colombian Put Notes.
(a) Within 60 days following the Initial Borrowing Date, the Collateral Agent
shall be entitled to demand from the Bermuda Borrower, by means of written
notice, the execution of one or more "mirror" promissory notes substantially in
the form of Exhibit N (the "Special Colombian Put Notes") in an aggregate
principal amount equal to the guaranty obligations of the Columbian Subsidiary
Guarantors pursuant to the Foreign Subsidiaries Guaranty, each of which Special
Colombian Put Notes shall be delivered to the Collateral Agent.

                  (b)      Upon the execution of any Special Colombian Put Note,
the Bermuda Borrower, the Administrative Agent, the Collateral Agent and the
Colombian Subsidiary Guarantors shall execute an agreement, in form and
substance acceptable to the Collateral Agent (the "Special Colombian Put Note
Agreement"), pursuant to which the Collateral Agent and/or the Administrative
Agent shall have the right to demand that the Colombian Subsidiary Guarantors
purchase (on a joint and several basis) any and all Special Colombian Put Notes
at par (plus accrued interest) and in U.S. Dollars.

                  (c)      Upon execution of the Special Colombian Put Note
Agreement, together with any and all amendments reasonably requested by the
Collateral Agent to the Foreign Subsidiaries Guaranty and the Foreign Security
Documents to which the Columbian Subsidiary Guarantors are a party, (i) the
Colombian Subsidiary Guarantors shall be released from the Foreign Subsidiaries
Guaranty and the Colombian Subsidiary Guarantors' obligations under the Foreign
Subsidiaries Guaranty shall be superseded by the Special Colombian Put Note
Agreement and (ii) the joint and several obligations of the Colombian Subsidiary
Guarantors under the Special Colombian Put Note Agreement shall be secured on
the same basis as the obligations of the Colombian Subsidiary Guarantors under
the Foreign Subsidiaries Guaranty were formerly so secured.

                  (d)      The Bermuda Borrower shall cause the Colombian
Subsidiary Guarantors to execute the required amendment(s) described above,
which amendments shall be in full force and effect on the date of execution of
the Special Colombian Put Note Agreement.

                  SECTION 9. Negative Covenants. Each Credit Agreement Party
hereby covenants and agrees that as of the Effective Date and thereafter for so
long as this Agreement is in effect and until the Total Commitment has
terminated, no Letters of Credit, Bank Guaranties or Notes are outstanding and
the Loans, together with interest, Fees and all other Obligations (other than
any indemnities described in Section 13.13 which are not then due and payable)
incurred hereunder, are paid in full:

                  9.01 Changes in Business; etc. (a) Holdings and its
Subsidiaries will not engage in any business other than a Permitted Business.

                                     -116-



                  (b)      Notwithstanding the foregoing, Holdings will not
engage in any business and will not own any significant assets (other than its
ownership of the capital stock of the U.S. Borrower) or have any liabilities
(other than those liabilities for which it is responsible under this Agreement,
the Documents to which it is a party and any Shareholder Subordinated Note);
provided that Holdings may (i) issue Shareholder Subordinated Notes, shares of
Holdings Common Stock and options and warrants to purchase Holdings Common
Stock, (ii) engage in those activities associated with expenses paid with
Dividends made by the U.S. Borrower pursuant to Section 9.06(iv) and (iii)
engage in those activities that are incidental to (x) the maintenance of its
corporate existence in compliance with applicable law, (y) legal, tax and
accounting matters in connection with any of the foregoing activities and (z)
the entering into, and performing its obligations under, this Agreement and the
other Documents to which it is a party.

                  (c)      Notwithstanding the foregoing, the Bermuda
Partnership will not engage in any business and will not own any significant
assets or any cash or Cash Equivalents (other than its ownership of Equity
Interests of 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 same are promptly (and in any event within one Business Day of receipt
thereof) loaned, distributed and/or contributed, subject to Section 9.01(d), to
its Subsidiaries and/or Affiliates in accordance with the requirements of
Section 9.05 of this Agreement, and (III) engage in those activities that (i)
are incidental to (x) the maintenance of its Company existence in compliance
with applicable law, (y) legal, tax and accounting matters in connection with
any of the foregoing activities and (z) the entering into, and performing its
obligations under, the Credit Documents to which it is a party and (ii) are
otherwise expressly permitted by this Agreement (other than pursuant to
preceding Section 9.01(a)) and the other Credit Documents.

                  (d)      Notwithstanding anything to the contrary contained
above or elsewhere in this Agreement (including, without limitation, Sections
9.02 and 9.05):

                  (i)      the Bermuda Partnership Partners shall not
         collectively own or hold (x) Property with a Fair Market Value in
         excess of $20,000,000 at any time or (y) cash or Cash Equivalents in an
         aggregate in excess of $5,000,000; provided that (v) all assets owned
         by the Bermuda Partnership Partners on the Effective Date (which assets
         shall have a net book value on the Effective Date not to exceed
         $15,000,000) shall be excluded for purposes of such determination, (w)
         any cash and Cash Equivalents loaned and/or contributed to such Persons
         by Affiliates of such Persons shall be excluded for purposes of such
         determination, so long as same are promptly (and in any event within
         one Business Day) loaned and/or distributed to other Affiliates of such
         Persons (other than another Bermuda Partnership Partner) in accordance
         with the requirements of this Agreement, (x) any inventory owned by the
         Bermuda Partnership Partners shall be excluded for purposes of such
         determination, (y) any Equity Interests in the Bermuda Partnership
         which are held by the Bermuda Partnership Partners shall be excluded
         for purposes of such determination and (z) any intercompany receivable
         owed to a Bermuda Partnership Partner by Dole Settlement Company shall
         be excluded for purposes of such

                                     -117-



         determination, so long as (I) both Dole Settlement Company (as obligor)
         and the respective Bermuda Partnership Partner (as obligee) are parties
         to the Intercompany Subordination Agreement and (II) such intercompany
         receivable is at all times subject to the subordination provisions
         contained in the Intercompany Subordination Agreement;

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

                  (iii)    no Bermuda Partnership Partner shall engage in any
         business other than a business which is the same or reasonably related
         to the business in which such Bermuda Partnership Partner is engaged on
         the Effective Date;

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

                  (v)      upon the occurrence and during the continuance of any
         Specified Default or any Event of Default under Section 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.

                  (e)      Notwithstanding the foregoing, the Excluded Domestic
Subsidiary will not engage in any business and will not own any assets or have
any liabilities; provided that an Excluded Domestic Subsidiary may engage in
those activities that are incidental to (x) the maintenance or termination of
its corporate existence in compliance with applicable law, and (y) legal, tax
and accounting matters in connection with any of the foregoing activities.

                                     -118-



                  (f)      Notwithstanding the foregoing, no Excluded Bermuda
Insurance Company will engage in any business (other than the insurance related
business conducted by it on the Effective Date) and will not own any Equity
Interests or any other significant assets (other than assets used in the conduct
of its business as conducted on the Effective Date) or have any liabilities
(other than those liabilities under the Documents to which it is a party and
those liabilities incurred in the ordinary course of its business as conducted
on the Effective Date); provided that an Excluded Bermuda Insurance Company may
engage in those activities that are incidental to (x) the maintenance of its
Company existence in compliance with applicable law, (y) legal, tax and
accounting matters in connection with any of the foregoing activities and (z)
the entering into, and performing its obligations under, this Agreement and the
other Documents to which it is a party.

                  (g)      Notwithstanding anything to the contrary contained
above in this Section or elsewhere in this Agreement (but subject to subclause
(5) of Section 13.19), at no time shall Holdings or any Subsidiary of Holdings
be an obligor or an obligee with respect to any Intercompany Debt, unless each
obligor (including each Person which is a guarantor thereof) and each obligee
with respect thereto are party to the Intercompany Subordination Agreement;
provided however, that the provisions hereof shall not apply to those Non-Wholly
Owned Subsidiaries listed on Part D of Schedule XIII.

                   (h)      Notwithstanding the foregoing, no Excluded Foreign
Subsidiary will engage in any business or own any assets (other than (x) Equity
Interests of another Excluded Foreign Subsidiary and (y) immaterial assets with
a Fair Market Value not exceeding $25,000) or have any liabilities; provided
that (I) notwithstanding the foregoing, an Excluded Foreign Subsidiary shall be
permitted to engage in the business conducted by such Excluded Foreign
Subsidiary on the Initial Borrowing Date and to own assets and have liabilities
in excess of any amounts permitted above, so long as such Excluded Foreign
Subsidiary is merged or consolidated into or with another Foreign Subsidiary
that is a Qualified Obligor organized in the jurisdiction of organization of
such Excluded Foreign Subsidiary within 180 days following the Initial Borrowing
Date and (II) any Excluded Foreign Subsidiary may engage in those activities
that are incidental to (x) the maintenance or termination of its corporate
existence in compliance with applicable law and (y) legal, tax and accounting
matters in connection with any of the foregoing activities.

                  9.02 Consolidation; Merger; Sale or Purchase of Assets; etc.
No Credit Agreement Party will, nor will permit any of its respective
Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any
transaction of merger or consolidation, or convey, sell, lease or otherwise
dispose of all or any part of its property or assets, or enter into any
sale-leaseback transactions, or purchase or otherwise acquire (in one or a
series of related transactions) any part of the property or assets (other than
purchases or other acquisitions of inventory, materials and equipment in the
ordinary course of business) of any Person or agree to do any of the foregoing
at any future time, except that the following shall be permitted:

                                     -119-



                  (i)      the U.S. Borrower and its Subsidiaries may lease (as
         lessee) or license (as licensee) real or personal property (including
         intellectual property) in the ordinary course of business (so long as
         any such lease or license does not create a Capitalized Lease
         Obligation);

                  (ii)     Capital Expenditures by the U.S. Borrower and its
         Subsidiaries to the extent not in violation of Section 9.12;

                  (iii)    Investments permitted pursuant to Section 9.05;

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

                  (v)      the U.S. Borrower and its Subsidiaries may sell
         assets (other than (I) the capital stock or other Equity Interests of
         any Wholly-Owned Subsidiary unless all of the capital stock or other
         Equity Interests of such Wholly-Owned Subsidiary are sold in accordance
         with this clause (v) and (II) assets subject to a Contemplated Asset
         Sale (which shall be governed by Section 9.02(xviii)), so long as (v)
         no Default or Event of Default then exists or would result therefrom,
         (w) each such sale is in an arm's-length transaction and the U.S.
         Borrower or the respective Subsidiary receives at least Fair Market
         Value, (x) except for customary post-closing adjustments (to be paid in
         cash within 180 days following the closing of the respective sale or
         disposition), at least 75% of the total consideration received by the
         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 $10,000,000 (taking the Fair Market Value of
         any non-cash consideration) in any Fiscal Year of Holdings shall not be
         subject to the minimum cash requirement set forth above in this
         subclause (x)), (y) the Net Sale Proceeds therefrom are applied and/or
         reinvested as (and to the extent) required by Section 4.02(c) and (z)
         the aggregate amount of the proceeds received from all assets sold
         pursuant to this clause (v) shall not exceed $50,000,000 in any Fiscal
         Year of Holdings;

                  (vi)     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;

                  (vii)    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, in each case so long as no such
         grant otherwise affects the Collateral Agent's security interest in the
         asset or property subject thereto;

                  (viii)   subject to Sections 9.01(c) and (d), transfers of
         assets (u) pursuant to the Foreign Asset Transfer, (v) among the
         Qualified U.S. Obligors (other than Holdings), (w) among the Qualified
         Non-U.S. Obligors, (x) by any Subsidiary of the U.S. Borrower to

                                     -120-




         any Qualified U.S. Obligor (other than Holdings), (y) by any Foreign
         Subsidiary of the U.S. Borrower to any Qualified Non-U.S. Obligor and
         (z) by any Foreign Subsidiary of the U.S. Borrower (other than a
         Qualified Non-U.S. Obligor) to any Wholly-Owned Foreign Subsidiary of
         the U.S. Borrower, in the case of any such transfer, so long as (I) no
         Specified Default and no Event of Default then exists or would exist
         immediately after giving effect to the respective transfer, (II) any
         security interests granted to the Collateral Agent for the benefit of
         the Secured Creditors pursuant to the relevant Security Documents in
         the assets so transferred shall remain in full force and effect and
         perfected and enforceable (to at least the same extent as in effect
         immediately prior to such transfer) and (III) if the respective
         transferor is party to a Guaranty, the nature and scope of the
         obligations of such transferor under its Guaranty are substantially
         identical to the nature and scope of the obligations of the respective
         transferee under its Guaranty;

                  (ix)     subject to Sections 9.01(c) and (d), (x) any Domestic
         Subsidiary of the U.S. 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 a U.S.
         Subsidiary Guarantor is the surviving corporation of such merger,
         consolidation or liquidation), (y) any Qualified Non-U.S. Obligor may
         be merged, consolidated or liquidated with or into any other Qualified
         Non-U.S. Obligor and (z) any Foreign Subsidiary of the U.S. Borrower
         (other than a Qualified Non-U.S. Obligor) may be merged, consolidated
         or liquidated with or into any Wholly-Owned Foreign Subsidiary of the
         U.S. Borrower, so long as such Wholly-Owned Foreign Subsidiary is the
         surviving corporation of such merger, consolidation or liquidation;
         provided that any such merger, consolidation or liquidation shall only
         be permitted pursuant to this clause (ix), so long as (I) no Specified
         Default and no Event of Default then exists or would exist immediately
         after giving effect thereto, (II) any security interests granted to the
         Collateral Agent for the benefit of the Secured Creditors in the assets
         (and Equity Interests) of any such Person subject to any such
         transaction shall remain in full force and effect and perfected and
         enforceable (to at least the same extent as in effect immediately prior
         to such merger, consolidation or liquidation) and (III) if the Person
         to be merged, consolidated or liquidated into another Person as
         contemplated above is party to a Guaranty, the nature and scope of the
         obligations of such Person under its Guaranty are substantially
         identical to the nature and scope of the obligations of such other
         Person under its Guaranty;

                  (x)      subject to Sections 9.01(c) and (d), the U.S.
         Borrower and its Subsidiaries may transfer inventory in a non-cash or
         cash transfer to Wholly-Owned Subsidiaries of the U.S. Borrower that
         are not Qualified Obligors, in each case so long as (I) any such
         transfer is made in the ordinary course of its business and consistent
         with past practice of the U.S. Borrower and its Subsidiaries as in
         effect on the Effective Date, (II) if the respective transfer is being
         made to any Credit Party, all actions needed to maintain the
         perfection, priority and enforceability of the security interests, if
         any, of the Collateral Agent in the assets so transferred are taken at
         the time of the respective transfer, (III) the U.S. Borrower reasonably
         determines that the transfer is not reasonably likely to be adverse to
         the interests of the Lenders in any material respect and (IV) no
         Specified Default and no Event of Default then exists or would exist
         immediately after giving effect to the respective transfer;

                                     -121-



                  (xi)     subject to Sections 9.01(c) and (d), so long as no
         Specified Default and no Event of Default exists at the time of the
         respective transfer or immediately after giving effect thereto,
         Qualified Obligors shall be permitted to transfer additional assets
         (other than inventory, cash, Cash Equivalents and Equity Interests in
         any Credit Party) to other Subsidiaries of the 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;

                  (xii)    the U.S. Borrower and its Subsidiaries may sell or
         exchange specific items of equipment, so long as the purpose of each
         such sale or exchange is to acquire (and results within 90 days of such
         sale or exchange in the acquisition of) replacement items of equipment
         which are useful in a Permitted Business;

                  (xiii)   each of the Borrowers and the Subsidiary Guarantors
         shall be permitted to make Permitted Acquisitions, so long as such
         Permitted Acquisitions are effected in accordance with the requirements
         of Section 8.15;

                  (xiv)    the Acquisition may be consummated in accordance with
         the relevant requirements of Section 5.08(a);

                  (xv)     the Sale-Leaseback Transaction may be consummated on
         the Initial Borrowing Date in accordance with the relevant requirements
         of Section 5.09 and the definition thereof;

                  (xvi)    each of the U.S. Borrower and its Subsidiaries may
         sell or liquidate Cash Equivalents, in each case for cash at fair
         market value (as reasonably determined by the U.S. Borrower or the
         respective Subsidiary);

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

                  (xviii)  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) the consideration therefor consists solely of cash and/or
         Permitted Installment Notes (to the extent same may be issued in
         accordance with the definition thereof), (iv) at least 50% of the total
         consideration received by the U.S. Borrower or such Subsidiary is paid
         in cash at the time of the closing of such sale, and (v) the Net Sale
         Proceeds therefrom are applied as required by Section 4.02(c); and

                  (xix)    the U.S. Borrower and its 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) 100% of the
         Net Sale Proceeds therefrom are applied as a mandatory repay-

                                     -122-



         ment and/or commitment reduction in accordance with the requirements of
         Section 4.02(c) (without giving effect to any reinvestment rights
         contained therein).

Notwithstanding anything to the contrary contained above in this Section 9.02,
in no event shall Holdings or any of its Subsidiaries enter into any
sale-leaseback transactions, except in accordance with Sections 9.02(xv) and
(xix) above. The foregoing provisions of this Section 9.02 are subject to
continued compliance by the Credit Agreement Parties and their Subsidiaries with
the requirements of Sections 8.19, 9.01 and 9.17. To the extent the Required
Lenders waive the provisions of this Section 9.02 with respect to the sale or
other disposition of any Collateral, or any Collateral is sold or otherwise
disposed of as permitted by this Section 9.02, such Collateral (unless
transferred to Holdings or a Subsidiary thereof) shall be sold or otherwise
disposed of free and clear of the Liens created by the Security Documents and
the Administrative Agent shall take such actions (including, without limitation,
directing the Collateral Agent to take such actions) as are appropriate in
connection therewith.

                  9.03 Liens. No Credit Agreement Party will, nor will permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon or with respect to any property or assets of any kind (real or personal,
tangible or intangible) of Holdings or any of its Subsidiaries, whether now
owned or hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable or notes with recourse to
Holdings or any of its Subsidiaries) or assign any right to receive income or
permit the filing of any financing statement under the UCC or any other similar
notice of Lien under any similar recording or notice statute; provided that the
provisions of this Section 9.03 shall not prevent the creation, incurrence,
assumption or existence of the following (Liens described below are herein
referred to as "Permitted Liens"):

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

                  (ii)     Liens in respect of property or assets of the U.S.
         Borrower or any of its Subsidiaries imposed by law which were incurred
         in the ordinary course of business and which have not arisen to secure
         Indebtedness for borrowed money, such as carriers', warehousemen's and
         mechanics' Liens, statutory landlord's Liens, maritime Liens and other
         similar Liens arising in the ordinary course of business, and which
         either (x) do not in the aggregate materially detract from the value of
         such property or assets or materially impair the use thereof in the
         operation of the business of the 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)    Liens created by or pursuant to this Agreement and
         the Security Documents;

                                     -123-



                  (iv)     Liens in existence on the Initial Borrowing Date
         which are listed, and the property subject thereto described, in
         Schedule IX, but only to the respective date, if any, set forth in such
         Schedule IX for the removal, replacement and termination of any such
         Liens, plus renewals, replacements and extensions of such Liens,
         provided that (x) the aggregate principal amount of the Indebtedness,
         if any, secured by such Liens does not increase from that amount
         outstanding at the time of any such renewal, replacement or extension
         and (y) any such renewal, replacement or extension does not encumber
         any additional assets or properties of the 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) pledged, paid
         and/or deposited by the U.S. Borrower or any of its Subsidiaries
         pursuant to this clause (v) shall not exceed $25,000,000 (net of any
         insurance proceeds actually received (and not returned) by the U.S.
         Borrower and its Subsidiaries in connection therewith) at any time;

                  (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 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 sub-clauses (y) and (z)
         shall not exceed $25,000,000 in the aggregate (it being understood that
         letters of credit and bank guaranties issued in support of customs
         bonds, licensing arrangements and similar obligations do not constitute
         Property pledged or deposited to support such obligations);

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

                                     -124-



                  (ix)     Liens arising from or related to precautionary UCC
         financing statements regarding operating leases entered into by the
         U.S. Borrower and its Subsidiaries in the ordinary course of business;

                  (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(iv), provided that (x) such Liens only serve
         to secure the payment of Indebtedness arising under such Capitalized
         Lease Obligation and (y) the Lien encumbering the asset giving rise to
         the Capitalized Lease Obligation does not encumber any other asset of
         the 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 30 days after the
         respective purchase) of assets acquired after the Initial Borrowing
         Date by the U.S. Borrower and its Subsidiaries, provided that (x) any
         such Liens attach only to the assets so purchased, (y) the Indebtedness
         secured by any such Lien does not exceed 100% of the Fair Market Value
         or the purchase price of the property being purchased at the time of
         the incurrence of such Indebtedness and (z) the Indebtedness secured
         thereby is permitted to be incurred pursuant to Section 9.04(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(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;

                  (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(vii) to the extent such Liens comply
         with clause (b)(ii) of the definition of Permitted Refinancing
         Indebtedness;

                                     -125-



                  (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(viii);

                  (xviii)  Liens over promissory notes evidencing grower loans
         pledged in favor of financial institutions securing Indebtedness
         permitted to be incurred pursuant to Section 9.04(xix)(x); 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 encumber any Property of the U.S. Borrower
         or any of its Subsidiaries the Fair Market Value of which exceeds the
         amount of the Indebtedness or other obligations secured by such
         Property or 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 $50,000,000 in the aggregate for all
         such Liens.

In connection with the granting of Liens of the type described in clauses (iv),
(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 any Credit Agreement Party, to take
any actions deemed appropriate by it in connection therewith (including, without
limitation, by executing appropriate lien releases or lien subordination
agreements in favor of the holder or holders of such Liens, in either case
solely with respect to the assets subject to such Liens).

                  9.04 Indebtedness. No Credit Agreement Party will, nor will
permit any of its Subsidiaries to, contract, create, incur, assume or suffer to
exist any Indebtedness, except:

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

                  (ii)     Scheduled Existing Indebtedness outstanding on the
         Initial Borrowing Date and listed on Schedule IV, without giving effect
         to any subsequent extension, renewal or refinancing thereof, except
         that Scheduled Existing Indebtedness may be refinanced through one or
         more issuances of Permitted Refinancing Indebtedness in accordance with
         Section 9.04(vii) below;

                  (iii)    Indebtedness of the Borrowers under Interest Rate
         Protection Agreements entered into to protect them against fluctuations
         in interest rates in respect of Indebtedness otherwise permitted under
         this Agreement, so long as the entering into of such Interest Rate
         Protection Agreements are bona fide hedging activities and are not for
         speculative purposes;

                  (iv)     Capitalized Lease Obligations and Indebtedness of the
         U.S. Borrower and its Subsidiaries representing purchase money
         Indebtedness secured by Liens permitted pursuant to Section 9.03(xi),
         provided that (i) all such Capitalized Lease Obligations are permitted
         under Section 9.11 and (ii) the sum of (x) the aggregate Capitalized
         Lease Obligations outstanding at any time plus (y) the aggregate
         principal amount of such purchase money Indebtedness outstanding at any
         time shall not exceed $25,000,000;

                                     -126-



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

                  (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), provided that (x) such Indebtedness 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 clause (vi) at any time (such Indebtedness
         described above in this Section 9.04(vi) being called "Permitted
         Acquired Debt"), when added to the aggregate principal amount of
         Permitted Refinancing Indebtedness outstanding pursuant to Section
         9.04(vii) at any time (except to the extent incurred to refinance
         Scheduled Existing Indebtedness, Indebtedness under the HQ Lease
         Agreements as described in Section 9.04(xxii) below and successive
         refinancings thereof), shall not exceed $50,000,000;

                  (vii)    Permitted Refinancing Indebtedness, so long as (x) no
         Specified Default or Event of Default is in existence at the time of
         the incurrence of such Permitted Refinancing Indebtedness and
         immediately after giving effect thereto and (y) the aggregate principal
         amount of Permitted Refinancing Indebtedness outstanding pursuant to
         this clause (vii) at any time (except to the extent incurred to
         refinance Scheduled Existing Indebtedness, Indebtedness under the HQ
         Lease Agreements as described in Section 9.04(xxii) below and
         successive refinancings thereof), when added to the aggregate principal
         amount of Permitted Acquired Debt outstanding pursuant to Section
         9.04(vi) at any time, shall not exceed $50,000,000;

                  (viii)   Indebtedness of Foreign Subsidiaries of the U.S.
         Borrower (other than the Bermuda Partnership) under lines of credit to
         any such Foreign Subsidiary from Persons other than Holdings or any of
         its Subsidiaries, the proceeds of which Indebtedness are used for such
         Foreign Subsidiary's working capital and other general corporate
         purposes, provided that the aggregate principal amount of all such
         Indebtedness outstanding at any time for all such Foreign Subsidiaries
         shall not exceed $50,000,000;

                  (ix)     Indebtedness of Holdings under Shareholder
         Subordinated Notes issued pursuant to Section 9.06(ii), so long as the
         aggregate outstanding principal amount of Shareholder Subordinated
         Notes does not at any time exceed $5,000,000;

                  (x)      additional unsecured Indebtedness of the U.S.
         Borrower consisting of unsecured guarantees by such Borrower of (x)
         obligations (which guaranteed obligations do not themselves constitute
         Indebtedness) of one or more Wholly-Owned Subsidiaries of the U.S.
         Borrower, (y) leases pursuant to which one or more Wholly-Owned
         Subsidiaries of the U.S. Borrower are the respective lessees and (z)
         Indebtedness of Wholly-Owned Subsidiaries of the U.S. Borrower of the
         type permitted pursuant to Section 9.04(xiv);

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

                                     -127-



                  (xii)    Indebtedness in respect of (x) Other Hedging
         Agreements to the extent permitted by Section 9.05(xii)(x) and (y)
         Commodity Agreements to the extent permitted by Section 9.05(xii)(y);

                  (xiii)   (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 $25,000,000 at any time outstanding and
         (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 $25,000,000 at any time
         outstanding;

                  (xiv)    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 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), provided
         that the maximum assumable liability (as measured by the reserves
         reasonably established on such Person's financial statements) in
         respect of all such Indebtedness shall at no time exceed the gross
         proceeds actually received by the U.S. Borrower and its Subsidiaries in
         connection with such dispositions;

                  (xv)     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 clause (viii) above), so long as the aggregate amount of
         the Contingent Obligations of the U.S. Borrower pursuant to this clause
         (xv) does not exceed $25,000,000 at any time;

                  (xvi)    (I) unsecured Indebtedness of the U.S Borrower
         incurred under the New Senior Notes and the New Senior Notes Indenture
         and of the U.S. Subsidiary Guarantors (and so long as same remain U.S.
         Subsidiary Guarantors) under subordinated guarantees of the obligations
         of the U.S. Borrower provided under the New Senior Notes Documents to
         which they are a party, in an aggregate principal amount not to exceed
         $475,000,000 (less the amount of any repayments of principal thereof
         after the Initial Borrowing Date), (II) unsecured Indebtedness of the
         U.S Borrower incurred under the Existing 2009 Senior Notes and the
         Existing 2009 Notes Indenture and of the U.S. Subsidiary Guarantors
         (and so long as same remain U.S. Subsidiary Guarantors) under
         subordinated guarantees of the obligations of the U.S. Borrower
         provided under the Existing 2009 Senior Notes Documents to which they
         are a party, in an aggregate principal amount not to exceed
         $400,000,000 (less the amount of any repayments of principal thereof
         after the Initial Borrowing Date), (III) unsecured Indebtedness of the
         U.S Borrower incurred under the Existing 2013 Senior Notes and the
         Existing 2013 Notes Indenture and of the U.S.

                                     -128-



         Subsidiary Guarantors (and so long as same remain U.S. Subsidiary
         Guarantors) under subordinated guarantees of the obligations of the
         U.S. Borrower provided under the Existing 2013 Senior Notes Documents
         to which they are a party, in an aggregate principal amount not to
         exceed $155,000,000 (less the amount of any repayments of principal
         thereof after the Initial Borrowing Date) and (IV) at all times prior
         to the Post-Closing Refinancing, unsecured Indebtedness of the U.S
         Borrower under the Existing Senior Notes To Be Refinanced in an
         aggregate principal amount not to exceed $510,000,000 (less the amount
         of any repayments of principal thereof after the Initial Borrowing
         Date);

                  (xvii)   Indebtedness of the U.S. Borrower and its
         Subsidiaries representing obligations in existence on the Effective
         Date that become Indebtedness after the Effective Date as a result of
         the implementation of FASB Interpretation No. 46 ("Consolidation of
         Variable Interest Entities") as in effect on the Effective Date;

                  (xviii)  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) and
         required by governmental laws, orders and regulations in an aggregate
         amount not to exceed $25,000,000 at any time;

                  (xix)    (x) Indebtedness of Foreign Subsidiaries incurred in
         connection with grower loan programs in an aggregate principal amount
         not to exceed $50,000,000 at any time outstanding and (y) unsecured
         Indebtedness of the U.S. Borrower evidenced by a guaranty of
         Indebtedness permitted pursuant to preceding subclause (x);

                  (xx)     Indebtedness of the U.S. Borrower or any of its
         Subsidiaries incurred in connection with vehicle inventory loans in an
         aggregate principal amount not to exceed $5,000,000 at one time
         outstanding;

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

                  (xxii)   obligations of the U.S. Borrower and the HQ Lessee
         (as defined in the U.S. Security Agreement) under the HQ Lease
         Agreements in an aggregate amount (exclusive of accrued interest or its
         equivalent) not to exceed $55,000,000; and

                  (xxiii)  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 $50,000,000 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.

                  9.05 Advances; Investments; Loans. No Credit Agreement Party
will, nor will permit any of its Subsidiaries to, directly or indirectly, lend
money or extend credit or make advances to any Person, or purchase or acquire
any stock, obligations or securities of, or any other Equity Interest in, or
make any capital contribution to, any Person, or purchase or own a futures
contract or otherwise become liable for the purchase or sale of currency or
other commodities at a future date in the nature of a futures contract, or hold
any cash or Cash Equivalents (each of the foregoing an "Investment" and,
collectively, "Investments"), except:

                                     -129-



                  (i)      the U.S. Borrower and its Subsidiaries may acquire
         and hold cash and Cash Equivalents; provided, however, that at any time
         Revolving Loans and/or Swingline Loans are outstanding, the aggregate
         amount of Unrestricted Cash held by the U.S. Borrower and its
         Subsidiaries shall not exceed $50,000,000 for any period of three
         consecutive Business Days;

                  (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 entered into in
         compliance with Section 9.04(iii) shall be permitted;

                  (v)      (x) Investments constituting Intercompany Scheduled
         Existing Indebtedness in existence on the Initial Borrowing Date (and
         any refinancings thereof permitted pursuant to Section 9.04(vii) and
         consistent with the definition of Permitted Refinancing Indebtedness)
         and (y) such other Investments in existence on the Initial Borrowing
         Date and listed on Schedule VI (without giving effect to any additions
         thereto or replacements thereof); provided that any additional
         Investments made with respect to the Investments described in preceding
         subclause (y) shall be permitted only if independently justified under
         the other provisions of this Section 9.05;

                  (vi)     (t) Intercompany Distribution Transactions in the
         form of intercompany loans may be made in accordance with the
         requirements of Section 5.09, (u) Qualified U.S. Obligors (other than
         Holdings) may make intercompany loans to each other, (v) Qualified
         Non-U.S. Obligors may make intercompany loans to each other, (w)
         Qualified U.S. Obligors (other than Holdings) may make intercompany
         loans to any Qualified Non-U.S. Obligor, (x) Qualified Obligors and
         Foreign Subsidiary Guarantors that are not Qualified Obligors may make
         intercompany loans to any Foreign Subsidiary of the U.S. Borrower that
         is not a Qualified Obligor, (y) any Wholly-Owned Foreign Subsidiary of
         the U.S. Borrower may make intercompany loans to any Qualified Obligor
         and (z) Non-Guarantor Subsidiaries may make intercompany loans to each
         other and to any Foreign Credit Party, provided that (I) unless the
         respective obligor under such intercompany loan reasonably determines
         that the execution, delivery and performance of an Intercompany Note is
         prohibited by, or that such Intercompany Note would not be enforceable
         against such obligor under, applicable local law, any such intercompany
         loan made pursuant to this clause (vi) (other than any such loan made
         to a Non-Wholly Owned Subsidiary) shall be evidenced by an Intercompany
         Note, (II) at no time shall the aggregate outstanding principal amount
         of all such intercompany loans made pursuant to subclause (w) of this
         clause (vi) above (exclusive of loans made to Qualified Non-U.S.
         Obligors which are

                                     -130-



         promptly on-lent by such Qualified Non-U.S. Obligors to Foreign
         Subsidiaries that are not Qualified Obligors in reliance on subclause
         (x) above), when added to the aggregate amount of cash equity
         contributions made in pursuant to (and in reliance on) Section
         9.05(viii)(y), exceed $100,000,000 (determined without regard to
         write-downs or write-offs thereof), (III) at no time shall the
         aggregate outstanding principal amount of all such intercompany loans
         made pursuant to subclause (x) of this clause (vi) above, when added to
         the aggregate amount of cash equity contributions made pursuant to (and
         in reliance on) Section 9.05(viii)(z), exceed $100,000,000 (determined
         without regard to write-downs or write-offs thereof), (IV) no
         intercompany loans may be made pursuant to subclause (w) or (x) of this
         clause (vi) at any time any Specified Default or any Event of Default
         is in existence (or would be in existence after giving effect thereto),
         (V) subject to subclause (5) of Section 13.19 and the exception
         specified in the proviso to Section 9.01(g), each intercompany loan
         made pursuant to this clause (vi) shall be subject to subordination as,
         and to the extent required by, the Intercompany Subordination Agreement
         and (VI) any intercompany loans made pursuant to this clause (vi) shall
         cease to be permitted hereunder if the obligor or obligee thereunder
         ceases to constitute a Qualified Obligor or a Foreign Subsidiary of the
         U.S. Borrower as contemplated above;

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

                  (viii)   (u) any Wholly-Owned Foreign Subsidiary of the U.S.
         Borrower may make cash common equity contributions to any Qualified
         Obligor, (v) any Qualified U.S. Obligor may make cash common equity
         contributions to any of its direct Wholly-Owned Subsidiaries that is a
         Qualified U.S. Obligor, (w) any Qualified Non-U.S. Obligor may make
         cash common equity contributions to any of its direct Wholly-Owned
         Subsidiaries that is a Qualified Non-U.S. Obligor, (x) any
         Non-Guarantor Subsidiary may make cash common equity contributions to
         any of its direct Wholly-Owned Subsidiaries that is a Non-Guarantor
         Subsidiary or a Foreign Credit Party, (y) any Qualified U.S. Obligor
         may make cash common equity contributions to any of its direct
         Wholly-Owned Subsidiaries that is Qualified Non-U.S. Obligor, and (z)
         any Qualified Obligor and any Foreign Subsidiary Guarantor that is not
         a Qualified Obligor may make cash common equity contributions to any of
         their respective direct Foreign Subsidiaries that is not a Qualified
         Obligor; provided that (I) at no time shall the aggregate amount of the
         cash common equity contributions made pursuant to subclause (y) of this
         clause (viii) (exclusive of cash contributions made to a Qualified
         Non-U.S. Obligor which are promptly contributed, in turn, to a Foreign
         Subsidiary of such Qualified Non-U.S. Obligor that is not a Qualified
         Obligor in reliance on subclause (z) above), when added to the
         aggregate outstanding principal amount of all intercompany loans made
         pursuant to subclause (w) of clause (vi) above (determined without
         regard to write-downs or write-offs thereof), exceed $100,000,000, (II)
         at no time shall the aggregate amount of the cash common equity

                                     -131-



         contributions made pursuant to subclause (z) of this clause (viii),
         when added to the aggregate outstanding principal amount of all
         intercompany loans made pursuant to subclause (x) of clause (vi) above
         (determined without regard to write-downs or write-offs thereof),
         exceed $100,000,000 and (III) no contributions may be made pursuant to
         subclause (y) or (z) of this clause (viii) at any time any Specified
         Default or any Event of Default is in existence (or would be in
         existence after giving effect thereto);

                  (ix)     the Borrowers and the Subsidiary Guarantors may make
         Permitted Acquisitions in accordance with the relevant requirements of
         Section 8.15 and the component definitions therein;

                  (x)      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;

                  (xi)     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(v) and (xviii);

                  (xii)    the U.S. Borrower and its Subsidiaries may enter into
         (x) Other Hedging Agreements in the ordinary course of business
         providing protection against fluctuations in currency values in
         connection with the operations of the U.S. Borrower or any of its
         Subsidiaries and (y) Commodity Agreements in the ordinary course of
         business providing protection against fluctuations in prices of
         commodities used in the operations of the U.S. Borrower and its
         Subsidiaries, in each case, so long as management of the U.S. Borrower
         or such Subsidiary, as the case may be, has determined in good faith
         that the entering into of such Other Hedging Agreements or Commodity
         Agreements, as the case may be, are bona fide hedging activities and
         are not for speculative purposes;

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

                  (xiv)    Investments arising as a result of the exercise of
         any "put" right of minority shareholders, or "call" rights of the
         Bermuda Borrower, pursuant to that certain Share Option Agreement,
         dated as of September 28, 1998, among the Bermuda Borrower, Axel
         Johnson Saba AB and Kooperativa Detaljhandelsgruppen AB (as in effect
         on the Effective Date) (the "Saba Share Option Agreement");

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

                                     -132-



         thereto), and (III) in the event a loan or advance made by a Credit
         Party pursuant to this clause (xv) is evidenced by a promissory note,
         such promissory note shall be pledged to the Collateral Agent pursuant
         to the relevant Foreign Security Document (except to the extent local
         law or the relevant grower loan documents prohibit such pledge or such
         note is required to be pledged to secure Indebtedness incurred pursuant
         to Section 9.04(xix)(x));

                  (xvi)    so long as no Default or Event of Default then exists
         or would result therefrom, the U.S. Borrower and its Subsidiaries may
         acquire Equity Interests in Persons (who, after giving effect to such
         acquisition, become Non-Wholly Owned Subsidiaries of the U.S. Borrower
         or such Subsidiary); provided that the aggregate amount of the
         Investments made pursuant to this clause (xvi) after the Effective Date
         shall not exceed $35,000,000 (without regard to any write-downs or
         write-offs thereof);

                  (xvii)   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 clause (xvii) which are
         not subject to the subordination provisions of the Intercompany
         Subordination Agreement shall not exceed $35,000,000 at any time;

                  (xviii)  Investments constituting guaranties permitted by
         Section 9.04;

                  (xix)    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 Tranche B Term Loans in accordance
         with the requirements of Section 4.01(vii), (y) the U.S. Borrower makes
         a concurrent prepayment of Tranche A 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 clause (xix) shall be
         subject to subordination as, and to the extent required by, the
         Intercompany Subordination Agreement; and

                  (xx)     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 clauses (i) through (xix)
         of this Section 9.05 in an aggregate amount not to

                                     -133-



         exceed $50,000,000 (determined without regard to any write-downs or
         write-offs thereof).

                  9.06 Restricted Payments; etc. No Credit Agreement Party will,
nor will permit any of its Subsidiaries to, declare or pay any dividends (other
than dividends payable solely in non-redeemable common stock or comparable
common equity interests of Holdings or any such Subsidiary, as the case may be)
or return any equity capital to, its stockholders, partners, members or other
equity holders or authorize or make any other distribution, payment or delivery
of property or cash to its stockholders, partners, members or other equity
holders as such, or redeem, retire, purchase or otherwise acquire, directly or
indirectly, for a consideration, any shares of any class of its capital stock or
other Equity Interests, now or hereafter outstanding (or any warrants for or
options or stock appreciation rights in respect of any of such shares or other
Equity Interests), or set aside any funds for any of the foregoing purposes, and
no Credit Agreement Party will permit any of its Subsidiaries to purchase or
otherwise acquire for consideration any shares of any class of the capital stock
or other Equity Interests of Holdings or any other Subsidiary, as the case may
be, now or hereafter outstanding (or any options or warrants or stock
appreciation rights issued by such Person with respect to its capital stock or
other Equity Interests) (all of the foregoing "Dividends") or make any payments
in respect of any outstanding Shareholder Subordinated Notes or Intercompany
Debt, except that:

                  (i)      (x) any Subsidiary of the 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 preceding clause (x) to any Wholly-Owned Subsidiary
         that is not a Credit Party may only be made if (A) (I) no Specified
         Default and no Event of Default then exists or would result therefrom
         and (II) such Wholly-Owned Subsidiary promptly distributes and/or
         transfer any Property received pursuant to such Dividend (directly or
         indirectly through other Wholly-Owned Subsidiaries) to a Credit Party
         or (B) the Subsidiary making such Dividend is not a Credit Party;
         provided however, that, subject to Section 9.01(d)(v), any such
         Dividend may be made to the Bermuda Partnership notwithstanding the
         existence of an Event of Default (other than an Event of Default under
         Section 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(d);

                  (ii)     Holdings may redeem or purchase shares of Holdings
         Common Stock or options to purchase Holdings Common Stock, as the case
         may be, held by former officers or employees of Holdings or any of its
         Subsidiaries following the death, disability, retirement or termination
         of employment of such officers or employees, provided that (w) the only
         consideration paid by Holdings in respect of such redemptions and/or
         purchases shall be cash and Shareholder Subordinated Notes, (x) the sum
         of (A) the aggregate

                                     -134-



         amount paid by Holdings in cash in respect of all such redemptions
         and/or purchases plus (B) the aggregate amount of all principal and
         interest payments made on Shareholder Subordinated Notes, shall not
         exceed $2,000,000 in any Fiscal Year of Holdings, and (z) at the time
         of any redemption or purchase pursuant to this Section 9.06(ii), no
         Specified Default or Event of Default shall then exist or result
         therefrom;

                  (iii)    the U.S. Borrower may pay cash Dividends to Holdings,
         so long as (x) no Specified Default or Event of Default then exists or
         would result therefrom and (y) the cash proceeds thereof are promptly
         used by Holdings for the purposes described in Section 9.06(ii);

                  (iv)     the U.S. Borrower may pay cash Dividends to Holdings,
         so long as the proceeds thereof are promptly used by Holdings to pay
         operating expenses in the ordinary course of business (including,
         without limitation, professional fees and expenses) and other similar
         corporate overhead costs and expenses;

                  (v)      the U.S. Borrower may pay cash Dividends to Holdings
         in the amounts and at the times of any payment by Holdings in respect
         of its taxes (or taxes of its consolidated group), provided that (x)
         the amount of cash Dividends paid pursuant to this clause (v) to enable
         Holdings to pay federal income taxes at any time shall not exceed the
         lesser of (A) the amount of such federal income taxes owing by Holdings
         at such time for the respective period and (B) the amount of such
         federal income taxes that would be owing by the U.S. Borrower and its
         Subsidiaries on a consolidated basis for such period if determined
         without regard to Holdings' ownership of the U.S. Borrower and (y) any
         refunds shall promptly be returned by Holdings to the U.S. Borrower;

                  (vi)     the Transaction shall be permitted to be consummated
         in accordance with the relevant requirements of this Agreement;

                  (vii)    the U.S. Borrower and its Subsidiaries may make
         payments with respect to Intercompany Debt, so long as the respective
         payment is permitted to be made in accordance with the terms of the
         Intercompany Subordination Agreement;

                  (viii)   Holdings may make payments of interest and principal
         on the Shareholder Subordinated Notes in accordance with the terms
         thereof, so long as the sum of (A) the aggregate amount paid by
         Holdings in cash in respect of all redemptions and/or purchases of
         Holdings Common Stock pursuant to Section 9.06(ii) plus (B) the
         aggregate amount of all principal and interest payments made on
         Shareholder Subordinated Notes, does not exceed $2,000,000 in any
         Fiscal Year of Holdings; and

                  (ix)     Holdings may pay regularly scheduled Dividends on its
         Qualified Preferred Stock pursuant to the terms thereof solely through
         the issuance of additional shares of such Qualified Preferred Stock
         rather than in cash.

                  9.07 Transactions with Affiliates. No Credit Agreement Party
will, nor will permit any of its Subsidiaries to, enter into any transaction or
series of transactions with any Affiliate of Holdings or any of its Subsidiaries
other than in the ordinary course of business and on terms and conditions
substantially as favorable to such Credit Agreement Party or such

                                     -135-



Subsidiary as would be reasonably expected to be obtainable by such Credit
Agreement Party or such Subsidiary at the time in a comparable arm's-length
transaction with a Person other than an Affiliate; provided that the following
shall in any event be permitted: (i) the Transaction; (ii) intercompany
transactions among the U.S. Borrower and its Subsidiaries to the extent
expressly permitted by Sections 9.02, 9.04, 9.05 and 9.06; (iii) the payment of
consulting or other fees to the U.S. Borrower by any of its Subsidiaries in the
ordinary course of business; (iv) customary fees to non-officer directors of the
U.S. Borrower and its Subsidiaries; (v) 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; (vi) Dividends may be paid by Holdings to the extent permitted by
Section 9.06; (vii) the payment of customary fees (excluding management fees) to
the Agents and their Affiliates for services rendered (including, without
limitation, any underwriting discounts and commissions); and (viii) transactions
between the U.S. Borrower and/or any of its Subsidiaries and their respective
Affiliates listed on Schedule XVI hereto. In no event shall any management,
consulting or similar fee be paid or payable by Holdings or any of its
Subsidiaries to any Affiliate (other than the U.S. Borrower or any other Credit
Party), except as specifically provided in this Section 9.07.

                  9.08 Consolidated Interest Coverage Ratio. Holdings will not
permit the Consolidated Interest Coverage Ratio for any Test Period ended on the
last day of a Fiscal Quarter set forth below to be less than the ratio set forth
opposite such Fiscal Quarter below:



          Fiscal Quarter                                       Ratio
          --------------                                       -----
                                                          
2nd Fiscal Quarter of Fiscal Year 2003                       2.50:1.0
3rd Fiscal Quarter of Fiscal Year 2003                       2.50:1.0
4th Fiscal Quarter of Fiscal Year 2003                       2.50:1.0

1st Fiscal Quarter of Fiscal Year 2004                       2.50:1.0
2nd Fiscal Quarter of Fiscal Year 2004                       2.50:1.0
3rd Fiscal Quarter of Fiscal Year 2004                       2.50:1.0
4th Fiscal Quarter of Fiscal Year 2004                       2.50:1.0

1st Fiscal Quarter of Fiscal Year 2005                       2.55:1.0
2nd Fiscal Quarter of Fiscal Year 2005                       2.60:1.0
3rd Fiscal Quarter of Fiscal Year 2005                       2.65:1.0
4th Fiscal Quarter of Fiscal Year 2005                       2.70:1.0

1st Fiscal Quarter of Fiscal Year 2006                       2.70:1.0
and each Fiscal Quarter thereafter


For purposes of making determinations of compliance with this Section 9.08
pursuant to Section 8.15(a) only, the Consolidated Interest Coverage Ratio shall
be calculated on a Pro Forma Basis.

                  9.09 Consolidated Fixed Charge Coverage Ratio. Holdings will
not permit the Consolidated Fixed Charge Coverage Ratio for any Test Period
ending on the last day of any Fiscal Quarter of Holdings to be less than the
ratio set forth opposite such Fiscal Quarter below:

                                     -136-





         Fiscal Quarter Ended                                 Ratio
         --------------------                                 -----
                                                          
2nd Fiscal Quarter of Fiscal Year 2003                       1.10:1.0
3rd Fiscal Quarter of Fiscal Year 2003                       1.10:1.0
4th Fiscal Quarter of Fiscal Year 2003                       1.10:1.0

1st Fiscal Quarter of Fiscal Year 2004                       1.10:1.0
2nd Fiscal Quarter of Fiscal Year 2004                       1.10:1.0
3rd Fiscal Quarter of Fiscal Year 2004                       1.10:1.0
4th Fiscal Quarter of Fiscal Year 2004                       1.10:1.0

1st Fiscal Quarter of Fiscal Year 2005                       1.15:1.0
and each Fiscal Quarter thereafter


For purposes of making determinations of compliance with this Section 9.09
pursuant to Section 8.15(a) only, the Consolidated Fixed Charge Coverage Ratio
shall be calculated on a Pro Forma Basis.

                  9.10 Leverage Ratio. Holdings will not permit the Leverage
Ratio at any time during a period set forth below to be greater than the ratio
set forth opposite such period below:



                           Period                                     Ratio
                           ------                                     -----
                                                                  
Initial Borrowing Date to and including the day occurring            5.25:1.0
prior to the last day of the 2nd Fiscal Quarter of Fiscal
Year 2004

Last day of the 2nd Fiscal Quarter of Fiscal Year 2004 to and        5.00:1.0
including the day occurring prior to the last day of 4th
Fiscal Quarter of Fiscal Year 2004

Last day of the 4th Fiscal Quarter of Fiscal Year 2004 to and        4.75:1.0
including the day occurring prior to the last day of 1st
Fiscal Quarter of Fiscal Year 2005

Last day of the 1st Fiscal Quarter of Fiscal Year 2005 to and        4.50:1.0
including the day occurring prior to the last day of 2nd
Fiscal Quarter of Fiscal Year 2005

Last day of the 2nd Fiscal Quarter of Fiscal Year 2005 to and        4.35:1.0
including the day occurring prior to the last day of the 3rd
Fiscal Quarter of Fiscal Year 2005


                                     -137-





                           Period                                     Ratio
                           ------                                     -----
                                                                  
Last day of the 3rd Fiscal Quarter of Fiscal Year 2005 to and        4.25:1.0
including the day occurring prior to the last day of the 4th
Fiscal Quarter of Fiscal Year 2005

Last day of the 4th Fiscal Quarter of Fiscal Year 2005 to and        4.00:1.0
including the day occurring prior to the last day of 2nd
Fiscal Quarter of Fiscal Year 2006

Last day of the 2nd Fiscal Quarter of Fiscal Year 2006 to and        3.85:1.0
including the day occurring prior to the last day of 4th
Fiscal Quarter of Fiscal Year 2006

Last day of the 4th Fiscal Quarter of Fiscal Year 2006 to and        3.75:1.0
including the day occurring prior to the last day of the 3rd
Fiscal Quarter of Fiscal Year 2007

Last day of the 3rd Fiscal Quarter of Fiscal Year 2007 and           3.50:1.0
thereafter


Notwithstanding anything to the contrary contained in the table set forth above,
at any time from November 1 to and including the last day of the 1st Fiscal
Quarter of each Fiscal Year, the Leverage Ratio as otherwise set forth in the
table above for the applicable period shall be adjusted by increasing the ratio
by 0.25 (for example, for the period from November 1, 2003 to and including the
last day of the 1st Fiscal Quarter of Fiscal Year 2004, the Leverage Ratio would
be increased from 5.25:1.00 to 5.50:1.00). All determinations of the Leverage
Ratio for purposes of this Section 9.10 shall include Consolidated EBITDA as
calculated on a Pro Forma Basis to give effect to all Permitted Acquisitions and
Significant Asset Sales, if any, effected during (but not after) the respective
Test Period for which Consolidated EBITDA is being determined; provided that for
purposes of making determinations of compliance with this Section 9.10 pursuant
to Section 8.15(a), the Leverage Ratio shall be calculated on a Pro Forma Basis
as otherwise required by the definition of Pro Forma Basis contained herein.

                  9.11 Minimum Consolidated EBITDA. Holdings will not permit
Consolidated EBITDA for any Test Period ending on the last day of a Fiscal
Quarter of Holdings set forth below to be less than the respective amount set
forth opposite such Fiscal Quarter below:



         Fiscal Quarter Ending                             Amount
         ---------------------                             ------
                                                     
2nd Fiscal Quarter of Fiscal Year 2003                  $115,000,000
3rd Fiscal Quarter of Fiscal Year 2003                  $190,000,000
4th Fiscal Quarter of Fiscal Year 2003                  $260,000,000

1st Fiscal Quarter of Fiscal Year 2004                  $345,000,000


                                     -138-





         Fiscal Quarter Ending                             Amount
         ---------------------                             ------
                                                     
2nd Fiscal Quarter of Fiscal Year 2004                  $350,000,000
3rd Fiscal Quarter of Fiscal Year 2004                  $355,000,000
4th Fiscal Quarter of Fiscal Year 2004                  $355,000,000

1st Fiscal Quarter of Fiscal Year 2005                  $360,000,000
2nd Fiscal Quarter of Fiscal Year 2005                  $365,000,000
3rd Fiscal Quarter of Fiscal Year 2005                  $370,000,000
4th Fiscal Quarter of Fiscal Year 2005                  $375,000,000

1st Fiscal Quarter of Fiscal Year 2006                  $385,000,000
2nd Fiscal Quarter of Fiscal Year 2006                  $385,000,000
3rd Fiscal Quarter of Fiscal Year 2006                  $385,000,000
4th Fiscal Quarter of Fiscal Year 2006                  $385,000,000

1st Fiscal Quarter of Fiscal Year 2007                  $390,000,000
and thereafter


                  9.12 Capital Expenditures. (a) Holdings will not, and will not
permit any of its Subsidiaries to, make any Capital Expenditures, except that
(i) during the period from the Initial Borrowing Date through and including the
last day of Fiscal Year 2003, the U.S. Borrower and its Subsidiaries may make
Capital Expenditures in an aggregate amount not to exceed $80,000,000 and (ii)
during any Fiscal Year of Holdings set forth below (taken as one accounting
period), the U.S. Borrower and its Subsidiaries may make Capital Expenditures so
long as the aggregate amount of such Capital Expenditures does not exceed the
amount set forth below opposite such Fiscal Year below:



  Fiscal Year                                                      Amount
  -----------                                                      ------
                                                             
Fiscal Year 2004                                                $100,000,000
Fiscal Year 2005                                                $100,000,000
Fiscal Year 2006                                                $100,000,000
Fiscal Year 2007                                                $100,000,000
Fiscal Year 2008                                                $100,000,000


                  (b)      Notwithstanding the foregoing, in the event that the
amount of Capital Expenditures permitted to be made by the U.S. Borrower and its
Subsidiaries pursuant to clause (a) above in any Fiscal Year of Holdings (or
during the period set forth in clause (a)(i) above) (before giving effect to any
increase in such permitted Capital Expenditure amount pursuant to this clause
(b)) is greater than the amount of Capital Expenditures actually made by the
U.S. Borrower and its Subsidiaries during such Fiscal Year (or period, as the
case may be), the lesser of (x) such excess and (y) 50% of the applicable
permitted scheduled Capital Expenditure amount as set forth in such clause (a)
above may be carried forward and utilized to make Capital Expenditures in the
immediately succeeding Fiscal Year, provided that no amounts once carried
forward pursuant to this Section 9.12(b) may be carried forward to any
subsequent Fiscal Year of Holdings thereafter and such amounts may only be
utilized after the U.S. Borrower and its

                                     -139-



Subsidiaries have utilized in full the permitted Capital Expenditure amount for
such period as set forth in the table in clause (a) above (without giving effect
to any increase in such amount pursuant to this clause (b)).

                  (c)      In addition to the foregoing, the U.S. Borrower and
its Subsidiaries may make additional Capital Expenditures (which Capital
Expenditures will not be included in any determination under Section 9.12(a))
with the Net Sale Proceeds of Asset Sales to the extent such Net Sale Proceeds
do not require, or result in, a mandatory repayment of Term Loans and/or a
mandatory reduction to the Total Revolving Loan Commitment pursuant to Section
4.02(c) and such proceeds are reinvested within 360 days (subject to a six month
extension for contractual commitments that are not completed during such 360-day
period) following the date of such Asset Sale in accordance with the
requirements of said Section.

                  (d)      In addition to the foregoing, the U.S. Borrower and
its Subsidiaries may make additional Capital Expenditures (which Capital
Expenditures will not be included in any determination under Section 9.12(a))
with the insurance proceeds received by the U.S. Borrower or any of its
Subsidiaries from any Recovery Event so long as such Capital Expenditures are to
replace or restore any properties or assets in respect of which such proceeds
were paid within 360 days (subject to a six month extension for contractual
commitments that are not completed during such 360-day period) following the
date of the receipt of such insurance proceeds, in each case to the extent such
insurance proceeds do not require, or result in, a mandatory repayment of Term
Loans and/or a mandatory reduction to the Total Revolving Loan Commitment
pursuant to Section 4.02(f).

                  (e)      In addition to the foregoing, the Borrowers and the
Subsidiary Guarantors may make additional Capital Expenditures (which Capital
Expenditures will not be included in any determination under Section 9.12(a))
constituting Permitted Acquisitions effected in accordance with the requirements
of Section 8.15.

                  9.13 Bank Debt Leverage Ratio. Holdings will not permit the
Bank Debt Leverage Ratio at any time during a period set forth below to be
greater than the ratio set forth opposite such period below:



                           Period                                        Ratio
                                                                     
Initial Borrowing Date to and including the day prior to the            2.30:1.0
last day of the 1st Fiscal Quarter of Fiscal Year 2004

Last Day of the 1st Fiscal Quarter of Fiscal Year 2004 to and           2.25:1.0
including the day occurring prior to the last day of the 4th
Fiscal Quarter of Fiscal Year 2004

Last Day of the 4th Fiscal Quarter of Fiscal Year 2004 to and           1.75:1.0
including the day occurring prior to the last day of 3rd
Fiscal Quarter of Fiscal Year 2005


                                     -140-



                                                                     
Last Day of the 3rd Fiscal Quarter of Fiscal Year 2005 to and           1.50:1.0
including the day occurring prior to the last day of the 4th
Fiscal Quarter of Fiscal Year 2005

Last Day of the 4th Fiscal Quarter of Fiscal Year 2005 and              1.25:1.0
thereafter



Notwithstanding anything to the contrary contained in the table set forth above,
at any time from November 1 to and including the last day of the 1st Fiscal
Quarter of each Fiscal Year, the Bank Debt Leverage Ratio as otherwise set forth
in the table above for the applicable period shall be adjusted by increasing the
ratio by 0.25 (for example, for the period from November 1, 2003 to and
including the day prior to the last day of the 1st Fiscal Quarter of Fiscal Year
2004, the Bank Debt Leverage Ratio would be increased from 2.30:1.00 to
2.55:1.00). All determinations of the Bank Debt Leverage Ratio for purposes of
this Section 9.13 shall include Consolidated EBITDA as calculated on a Pro Forma
Basis to give effect to all Permitted Acquisitions and Significant Asset Sales,
if any, effected during (but not after) the respective Test Period for which
Consolidated EBITDA is being determined; provided that for purposes of making
determinations of compliance with this Section 9.13 pursuant to Section 8.15(a),
the Bank Debt Leverage Ratio shall be calculated on a Pro Forma Basis as
otherwise required by the definition of Pro Forma Basis contained herein.

                  9.14 Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain
Other Agreements; Issuances of Capital Stock; etc. (a) No Credit Agreement Party
will, and no Credit Agreement Party will permit any of its Subsidiaries to:

                  (i)      make (or give any notice in respect of) any voluntary
         or optional payment or prepayment on or redemption, repurchase or
         acquisition for value of (including, without limitation, by way of
         depositing with the trustee with respect thereto or any other Person
         money or securities before due for the purpose of paying when due), or
         any prepayment, repurchase, redemption or acquisition for value as a
         result of any asset sale, change of control or similar event of any New
         Senior Notes, any Existing Indebtedness (other than Scheduled Existing
         Indebtedness), or, after the incurrence or issuance thereof, any
         Permitted Refinancing Indebtedness, Shareholder Subordinated Notes
         (except to the extent expressly permitted under Section 9.06(viii)),
         Qualified Preferred Stock or Permitted Acquired Debt; provided that (w)
         the New Senior Notes may be exchanged for New Exchange Senior Notes in
         accordance with the requirements of the respective definitions thereof
         and the relevant provisions of this Agreement, (x) so long as no Event
         of Default then exists or would result therefrom, the Post-Closing
         Refinancing may be consummated in accordance with the requirements of
         Section 8.21, (y) so long as no Specified Default and no Event of
         Default then exists or would result therefrom, any Scheduled Existing
         Indebtedness, any Permitted Acquired Debt and any Permitted Refinancing
         Indebtedness incurred to refinance same may be refinanced with
         Permitted Refinancing Indebtedness in accordance with the requirements
         of this Agreement and (z) the U.S. Borrower may redeem New Senior Notes
         or Existing Senior Notes with the proceeds of any sale of Equity
         Interests by, or capital contribution to, Holdings not required to be
         applied as a mandatory repayment and/or commitment reduction in
         accordance with

                                     -141-



         the requirements of Section 4.02(e) and the definition of Applicable
         Prepayment Percentage, so long as (I) no Default or Event of Default
         then exists or would result therefrom and (II) any such redemption is
         effected in accordance with the terms of the relevant indenture
         governing such senior notes and all applicable law;

                  (ii)     amend or modify, or permit the amendment or
         modification of, any provision of any New Senior Notes Document or any
         Existing Senior Notes Document, other than any technical or clarifying
         amendments, modifications or changes to any such Documents that are not
         in any way adverse to the interests of the Lenders and do not relate to
         the subordination provisions contained therein; or

                  (iii)    amend, modify or change any Merger Document, any
         Permitted Acquired Debt, any Permitted Refinancing Indebtedness, any
         Tax Allocation Agreement, any Management Agreement, any Qualified
         Preferred Stock, its certificate of incorporation (including, without
         limitation, by the filing or modification of any certificate of
         designation), by-laws, certificate of partnership, partnership
         agreement, certificate of limited liability company, limited liability
         company agreement (or equivalent organizational documents) or any
         agreement entered into by it, with respect to its capital stock or
         other Equity Interests (including any Shareholders' Agreement), or
         enter into any new Tax Allocation Agreement, Management Agreement or
         agreement with respect to its capital stock or other Equity Interests,
         other than (A) any change to Permitted Acquired Debt or Permitted
         Refinancing Indebtedness as a result of the refinancing thereof as
         permitted by Section 9.13(i), (B) any amendments or modifications to
         Permitted Refinancing Debt or Qualified Preferred Stock consistent with
         the definitions thereof provided herein and (C) any amendments,
         modifications or changes pursuant to this clause (iii) and any such new
         agreements pursuant to this clause (iii), (x) which do not in any way
         adversely affect the interests of the Lenders, (y), in the case of any
         Management Agreement, which does not involve the payment by Holdings or
         any of its Subsidiaries of any amount which could give rise to a
         violation of this Agreement and (z) any amendment to such Person's
         respective certificates of incorporation or other organizational
         documents to authorize the issuance of capital stock or other Equity
         Interests otherwise permitted to be issued pursuant to the terms of
         this Agreement.

                  (b)      Neither Holdings nor any of its Subsidiaries shall
designate any Indebtedness (other than the Obligations) as "Designated Guarantor
Senior Debt" for purposes of the New Senior Notes Documents or the Existing
Senior Notes Documents.

                  9.15 Limitation on Issuance of Equity Interests. (a) Holdings
will not issue (i) any Preferred Equity (or any options, warrants or rights to
purchase Preferred Equity) (other than Qualified Preferred Stock issued pursuant
to clause (c) below) or (ii) any redeemable common stock or equivalent common
Equity Interests.

                  (b)      No Borrower shall, nor shall permit any of its
Subsidiaries to, issue any capital stock or other Equity Interests (including by
way of sales of treasury stock), except (i) for transfers and replacements of
then outstanding shares of capital stock or other Equity Interests, (ii) for
stock splits, stock dividends and additional issuances which do not decrease the
aggregate percentage ownership of Holdings and its Subsidiaries in any class of
the capital stock or other

                                     -142-



Equity Interests of such Subsidiaries, (iii) in the case of Foreign Subsidiaries
of the U.S. Borrower, to qualify directors to the extent required by applicable
law, (iv) Subsidiaries formed after the Effective Date pursuant to Section 9.17
may issue capital stock or other Equity Interests in accordance with the
requirements of Section 9.17 and (v) issuances of Equity Interests (including
Preferred Equity) by any Wholly-Owned Subsidiary of the U.S. Borrower to one or
more other Wholly-Owned Subsidiaries of the U.S. Borrower. All capital stock or
other Equity Interests issued in accordance with this Section 9.15(b) shall, to
the extent required by the relevant Security Document, be delivered to the
Collateral Agent for pledge pursuant to such Security Document.

                  (c)      Holdings may issue Qualified Preferred Stock so long
as (x) no Default or Event of Default shall exist at the time of any such
issuance or immediately after giving effect thereto, and (y) with respect to
each issue of Qualified Preferred Stock, the gross cash proceeds therefrom (or
in the case of Qualified Preferred Stock directly issued as consideration for a
Permitted Acquisition, the Fair Market Value thereof of the assets received
therefor) shall be at least equal to 100% of the liquidation preference thereof
at the time of issuance.

                  9.16 Limitation on Certain Restrictions on Subsidiaries. No
Credit Agreement Party will, nor will permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective, any encumbrance or restriction on the ability of any such Subsidiary
to (x) pay dividends or make any other distributions on its capital stock or any
other Equity Interests or participation in its profits owned by Holdings or any
Subsidiary of Holdings, or pay any Indebtedness owed to Holdings or a Subsidiary
of Holdings, (y) make loans or advances to Holdings or any Subsidiary of
Holdings or (z) transfer any of its properties or assets to Holdings or any of
its Subsidiaries, except for such encumbrances or restrictions existing under or
by reason of (i) applicable law, (ii) this Agreement and the other Credit
Documents, (iii) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest of the 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
or a Permitted Acquisition effected in accordance with Section 8.15; provided
that the restrictions applicable to such joint venture are not made more
burdensome, 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 or Permitted Acquisition; (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 New Senior Notes Documents;
(ix) the Existing 2009 Senior Notes Documents and (x) the Existing 2013 Senior
Notes Documents.

                                     -143-



                  9.17 Limitation on the Creation of Subsidiaries and Joint
Ventures. (a) Except as otherwise specifically provided in immediately
succeeding clause (b), Holdings will not, and will not permit any of its
Subsidiaries to, establish, create or acquire after the Initial Borrowing Date
any Subsidiary, provided that the U.S. Borrower and its Wholly-Owned
Subsidiaries shall be permitted to establish or create Wholly-Owned Subsidiaries
so long as (A) at least 15 Business Days' (or such lesser period as is
acceptable to the Administrative Agent in any given case) prior written notice
thereof is given to the Administrative Agent (provided that no such notice shall
be required to be given in the case of a Shell Corporation), (B) subject to
Sections 8.11(d) and 8.12, the Equity Interests of each such new Wholly-Owned
Subsidiary (if same is an Unrestricted Subsidiary) are pledged pursuant to, and
to the extent required by, the applicable Pledge Agreements and/or Foreign
Security Agreements and, if such Equity Interests constitute certificated Equity
Interests, the certificates representing such Equity Interests, together with
stock or other powers duly executed in blank, are delivered to the Collateral
Agent for the benefit of the Secured Creditors, (C) to the extent such new
Wholly-Owned Subsidiary is required, in accordance with the applicable
provisions of Section 8.11, to become a U.S. Subsidiary Guarantor, (i) such new
Wholly-Owned Subsidiary executes and delivers counterparts of the U.S.
Subsidiaries Guaranty, the Intercompany Subordination Agreement and such
Security Documents as would have been entered into by the respective Subsidiary
if same had been a U.S. Subsidiary Guarantor on the Initial Borrowing Date, and
takes all action in connection therewith as would otherwise have been required
to be taken pursuant to Section 5 if such new Wholly-Owned Subsidiary had been a
U.S. Credit Party on the Initial Borrowing Date, (D) to the extent such new
Wholly-Owned Subsidiary is organized in a Qualified Non-U.S. Jurisdiction and is
required, in accordance with the applicable provisions of Section 8.11, to
become a Foreign Subsidiary Guarantor, (i) such new Wholly-Owned Subsidiary
executes and delivers counterparts of the Foreign Subsidiaries Guaranty, the
Intercompany Subordination Agreement and such Security Documents as would have
been entered into by the respective Subsidiary if same had been a Foreign
Subsidiary Guarantor on the Initial Borrowing Date (determined in accordance
with the criteria described in Sections 5.15, 5.17 and 5.18(b)), and takes all
action in connection therewith as would otherwise have been required to be taken
pursuant to Section 5 if such new Wholly-Owned Subsidiary had been a Foreign
Credit Party on the Initial Borrowing Date, (E) to the extent such new
Wholly-Owned Subsidiary is organized in a Non-Qualified Jurisdiction and is
required, in accordance with the applicable provisions of Section 8.11, to
become a Foreign Subsidiary Guarantor, (i) such new Wholly-Owned Subsidiary
executes and delivers 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 would have been entered into by the respective Subsidiary if same
had been a Foreign Subsidiary Guarantor organized in such Non-Qualified
Jurisdiction on the Initial Borrowing Date (determined in accordance with the
criteria described in Sections 5.15, 5.17 and 5.18(b)), and takes all action in
connection therewith as would otherwise have been required to be taken pursuant
to Section 5 if such new Wholly-Owned Subsidiary had been a Foreign Credit Party
organized in such Non-Qualified Jurisdiction on the Initial Borrowing Date and
(F) such new Wholly-Owned Subsidiary, to the extent requested by any Agent or
the Required Lenders, takes all other actions required pursuant to Section 8.11
(including, without limitation, to, at its own expense, execute, acknowledge and
deliver, or cause the execution, acknowledgment and delivery of, and thereafter
register, file or record in any appropriate governmental office, any document or
instrument reasonably deemed

                                     -144-



by the Collateral Agent to be necessary or desirable for the creation and
perfection of the Liens on its assets intended to be created pursuant to the
applicable Security Documents); provided that in the case of a Shell Corporation
created or established by the U.S. Borrower or any of its Wholly-Owned
Subsidiaries, the actions described in clauses (B), (C), (D) and (E) and
applicable to such Shell Corporation shall not be required to be taken (so long
as same remains a Shell Corporation) until 60 days after the creation or
establishment of such Shell Corporation.

                  (b)      In addition to Subsidiaries of the U.S. Borrower
created pursuant to preceding clause (a), the U.S. Borrower and its Subsidiaries
may establish, acquire or create, and make Investments in, Non-Wholly Owned
Subsidiaries after the Initial Borrowing Date as a result of Permitted
Acquisitions (subject to the limitations contained in the definition thereof)
and Investments expressly permitted to be made pursuant to Section 9.05,
provided that (x) all Equity Interests of each such Non-Wholly Owned Subsidiary
which is an Unrestricted Subsidiary shall be pledged by any Credit Party which
owns same to the extent required by the Pledge Agreements or relevant Foreign
Security Agreements, and (y) any actions required to be taken pursuant to
Section 8.11 in connection with the establishment of, or Investments in, the
respective Subsidiaries are taken in accordance with the requirements of said
Section 8.11.

                  9.18 Special Restrictions Relating to Principal Property. No
Credit Agreement Party will, nor will permit any of its Subsidiaries to, (i) own
any Principal Property (other than the Principal Properties designated on
Schedule XVII hereto), (ii) permit any Property owned by such Credit Agreement
Party or such Subsidiary which is not a Principal Property on the Initial
Borrowing Date to become a Principal Property after the Initial Borrowing Date
or (iii) directly or indirectly, create, incur, issue, assume, guarantee or
otherwise become liable for or suffer to exist any Indebtedness secured by a
Lien on Principal Property.

                  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 or Note, (ii) default, and such
default shall continue for three or more Business Days, in the payment when due
of any Unpaid Drawing, any Unreimbursed Payment, any interest on any Loan or
Note or any Fees or (iii) default, and such default shall continue for 10 or
more Business Days after notice to 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. Any representation, warranty or
statement made or deemed made by any Credit Party herein or in any other Credit
Document or in any statement or certificate delivered pursuant hereto or thereto
shall prove to be untrue in any material respect on the date as of which made or
deemed made; or

                  10.03 Covenants. Holdings or any of its Subsidiaries shall (a)
default in the due performance or observance by it of any term, covenant or
agreement contained in Section 2B.07, 8.01(f)(i), 8.10, 8.11, 8.13, 8.15, 8.19,
8.20, 8.21, 8.22 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

                                     -145-



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) Holdings or any of
its Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) beyond the period of grace, if any,
provided in the instrument or agreement under which Indebtedness was created or
(ii) default in the observance or performance of any agreement or condition
relating to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause (determined without regard
to whether any notice is required), any such Indebtedness to become due prior to
its stated maturity; or (b) any Indebtedness (other than the Obligations) of
Holdings or any of its Subsidiaries shall be declared to be (or shall become)
due and payable, or shall be required to be prepaid other than by a regularly
scheduled required prepayment, prior to the stated maturity thereof; provided
that it shall not constitute an Event of Default pursuant to clause (a) or (b)
of this Section 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. Holdings or any of its Subsidiaries
shall commence a voluntary case concerning itself under Title 11 of the United
States Code entitled "Bankruptcy," as now or hereafter in effect, or any
successor thereto (the "Bankruptcy Code"); or an involuntary case is commenced
against Holdings or any of its Subsidiaries and the petition is not controverted
within 10 days, or is not dismissed within 60 days, after commencement of the
case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or
takes charge of, all or substantially all of the property of Holdings or any of
its Subsidiaries; or Holdings or any of its Subsidiaries commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to Holdings or any of
its Subsidiaries; or there is commenced against Holdings or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days; or Holdings or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or Holdings or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days; or
Holdings or any of its Subsidiaries makes a general assignment for the benefit
of creditors; or any Company action is taken by Holdings or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or

                  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

                                     -146-



reasonably expected to occur with respect to such Plan within the following 30
days which will result in a Material Adverse Effect, any Plan which is subject
to Title IV of ERISA shall have had or is likely to have a trustee appointed to
administer such Plan pursuant to Section 4042(b) of ERISA, any Plan or
Multiemployer Plan which is subject to Title IV of ERISA is, shall have been or
is likely to be involuntarily terminated or to be the subject of termination
proceedings under ERISA, any Plan subject to Title IV of ERISA shall have an
Unfunded Current Liability, a contribution required to be made with respect to a
Plan subject to Title IV of ERISA or Multiemployer Plan or a Foreign Pension
Plan has not been made within 60 days of when due, Holdings or any Subsidiary of
Holdings or any ERISA Affiliate has incurred or is likely to incur any liability
to or on account of a Plan subject to Title IV of ERISA or Multiemployer Plan
under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or
4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on account of a
group health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2)
of the Code) under Section 4980B of the Code, or Holdings or any Subsidiary of
Holdings has incurred or is likely to incur liabilities pursuant to one or more
employee welfare benefit plans (as defined in Section 3(1) of ERISA) that
provide benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or Plans or Foreign Pension Plans, a "default"
within the meaning of Section 4219(c)(5) of ERISA, shall occur with respect to
any Plan or Multiemployer Plan; (b) there shall result from any such event or
events described above in this Section 10.06 the imposition of a 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 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 and (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 $5,000,000; or

                  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

                                     -147-



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 Holdings or any of its Subsidiaries involving a liability (to
the extent not paid or covered by a reputable and solvent insurance company
(with any portion of any judgment or decree not so covered to be included in any
determination hereunder)) equal to or in excess of $25,000,000 for all such
judgments and decrees and all such judgments or decrees shall either be final
and non-appealable or shall not have been vacated, discharged or stayed or
bonded pending appeal for any period of 60 consecutive days; provided, however,
that the rendering of any such judgment(s) or decree(s) by courts outside of the
United States and Bermuda shall not be an Event of Default under this Section
10.09 unless (i) Holdings and its Subsidiaries which are subject to the
judgment(s) or decree(s), as of the date of the issuance of such judgment(s) or
decree(s) (or any later date while such judgment(s) or decree(s) are still in
effect) have at least $25,000,000 in net assets (determined on a book basis
without regard to any write-down or write-off of such assets as a result of such
judgment(s) or decree(s)) located in the jurisdictions (i.e., the relevant
country or countries or any larger jurisdiction of the respective court(s)) of
the courts rendering such judgment(s) or decree(s) (which is (or are) final and
non-appealable or has (or have) not been vacated, discharged, stayed or bonded
pending appeal for any period of 60 consecutive days) or (ii) an order or orders
enforcing such judgment(s) or decree(s) (which is (or are) final and
non-appealable or has (or have) not been vacated, discharged, stayed or bonded
pending appeal for any period of 60 consecutive days) is entered by a court or
courts of competent jurisdiction in a jurisdiction or jurisdictions where
Holdings and/or its Subsidiaries subject to the order, as of the date of the
entry of such order of enforcement (or any later date while any such order is
still in effect), have at least $25.0 million 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 Capital Call Agreement. (a) The Capital Call Agreement
or any provision thereof shall cease to be in full force and effect except in
accordance with the terms thereof, or Murdock or any Person acting by or on
behalf of Murdock (including a Qualified Trust) shall deny or disaffirm its
obligations under the Capital Call Agreement or Murdock or any Person acting on
or behalf of Murdock shall default in the due performance or observance of any
term, covenant or agreement on its part to be performed or observed pursuant to
the Capital Call Agreement or a Capital Call Event of Default under, and as
defined in, the Capital Call Agreement shall occur; or

                  (b)      Any representation, warranty or statement made (or
deemed made) by Murdock in the Capital Call Agreement shall prove to be untrue
in any material respect on the date as of which made or deemed made; or

                  10.12 Denial of Liability. (a) Any Credit Agreement Party
shall deny its obligations under this Agreement, any Note 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

                                     -148-



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
10.12; or

                  10.13 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 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 10.13; or

                  10.14 Special Defaults Relating to Bermuda Entities. (i) The
Bermuda Borrower shall fail to maintain its corporate existence in full force
and effect or (ii) any Foreign Credit Party organized under the laws of Bermuda
shall (x) fail to take any of the actions described in Section 8.05 (determined
without regard to the second proviso appearing in said Section) or (y) take any
action described in the last sentence of Section 8.16 (determined without regard
to the proviso appearing at the end of said sentence), and such failure to take
or the taking of such action, as the case may be, described in this clause (ii)
shall continue for a period of at least 30 days after notice to such Foreign
Credit Party by the Administrative Agent or the Required Lenders;

then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Lenders, by written notice to Holdings or the 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 RL Commitment Commission and any
other Fees shall forthwith become due and payable without any other notice of
any kind; (ii) declare the principal of and any accrued interest in respect of
all Loans and all Obligations owing hereunder (including Unpaid Drawings 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), 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

                                     -149-



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
Multicurrency Facility Letters of Credit issued for the account of the Bermuda
Borrower and then outstanding, (y) the aggregate Stated Amount of all Bermuda
Borrower Dollar Facility Letters of Credit then outstanding and (z) 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 Dollars), to be held as security by the
Administrative Agent, as is equal to the aggregate Stated Amount of all U.S.
Borrower Dollar Facility Letters of Credit 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:

                  "Account Party" shall mean the U.S. Borrower and/or the
Bermuda Borrower, as the case may be.

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

                  "Acquisition" shall mean, collectively, (i) the consummation
of the Merger, (ii) the contribution by David H. Murdock and his Affiliates of
all of the shares of the capital stock of the U.S. Borrower held by them
(representing approximately 23% of the outstanding shares of capital stock of
the U.S. Borrower (on a fully diluted basis) prior to consummation of the
Merger) as a common equity contribution to Holdings and (iii) the contribution
by Holdings, in turn, of all of the capital stock of the U.S. Borrower then held
by it as a common equity contribution to Acquisition Corp.

                  "Acquisition Corp." shall mean DHM Acquisition Company, Inc.,
a Delaware corporation and (prior to the consummation of the Acquisition) a
Wholly-Owned Subsidiary of Holdings.

                  "Acquisition Documents" shall mean the Merger Agreement and
all other documents and agreements delivered in connection with the Acquisition,
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.

                                     -150-



                  "Additional Collateral" shall mean all property (whether real
or personal) in which security interests are granted (or have been purported to
be granted) (and continue to be in effect at the time of determination) pursuant
to Sections 8.11, 8.12 and/or 9.17.

                  "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).

                  "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, 8.12, 8.15 and/or 9.17, as each
such document may be modified, supplemented or amended from time to time in
accordance with the terms hereof and thereof.

                  "Adjustable Applicable Margins" shall have the meaning
provided in the definition of Applicable Margin.

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

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

                  "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 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 Holdings or any
Subsidiary thereof.

                  "Agent" shall mean the Administrative Agent, each
Co-Syndication Agent and each Co-Documentation Agent and shall include any
successor to any such Person appointed pursuant to Section 12.10.

                  "Aggregate Bermuda Borrower Dollar Facility RL Exposure" at
any time shall mean the sum of (i) the aggregate principal amount of all Bermuda
Borrower Dollar Facility

                                     -151-



Revolving Loans then outstanding, (ii) the aggregate amount of all Bermuda
Borrower Dollar Facility Letter of Credit Outstandings at such time and (iii)
the aggregate principal amount of all Bermuda Borrower Dollar Facility Swingline
Loans then outstanding.

                  "Aggregate Dollar Facility RL Exposure" at any time shall mean
the sum of (i) the aggregate principal amount of all Dollar Facility Revolving
Loans then outstanding, (ii) the aggregate amount of all Dollar Facility Letter
of Credit Outstandings at such time and (iii) the aggregate principal amount of
all Dollar Facility Swingline Loans then outstanding.

                  "Aggregate Multicurrency Facility RL Exposure" at any time
shall mean the sum of (i) the aggregate principal amount of all Multicurrency
Facility Revolving Loans then outstanding (for this purpose, using the Dollar
Equivalent of each Euro Denominated Revolving Loan then outstanding), (ii) the
aggregate amount of all Multicurrency Facility Letter of Credit Outstandings
(using the Dollar Equivalent of all amounts expressed in Euros) at such time,
(iii) the aggregate principal amount of all Multicurrency Facility Swingline
Loans (for this purpose, using the Dollar Equivalent of each Euro Denominated
Swingline Loan then outstanding) and (iv) the aggregate amount of all Bank
Guaranty Outstandings (using the Dollar Equivalent of all amounts expressed in
Euros) at such time.

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

                  "Applicable Currency" shall mean (i) with respect to any Loan,
the Available Currency in which such Loan was incurred and (ii) with respect to
any Letter of Credit or Bank Guaranty, the Available Currency in which such
Letter of Credit or Bank Guaranty was denominated; provided that in the event
Loans maintained in, Unpaid Drawings owed in, and Unreimbursed Payments owed in,
Euros are converted into Loans maintained, or Unpaid Drawings or Unreimbursed
Payments owing, as the case may be, in Dollars under the circumstances
contemplated by Section 1.14, the Applicable Currency with respect to such
Loans, Unpaid Drawings and Unreimbursed Payments shall be Dollars.

                  "Applicable Dollar Facility Commitment Fee Percentage" shall
mean, for any day, (i) in the event the Total Unutilized Dollar Facility
Revolving Loan Commitment in effect on such day is greater than or equal to 66%
of the Total Dollar Facility Revolving Loan Commitment as in effect on such day,
1.00%, (ii) in the event the Total Unutilized Dollar Facility Revolving Loan
Commitment in effect on such day is (x) greater than or equal to 33% of the
Total Dollar Facility Revolving Loan Commitment as in effect on such day and (y)
less than 66% of the Total Dollar Facility Revolving Loan Commitment as in
effect on such day, 0.750%, and (iii) in the event the Total Unutilized Dollar
Facility Revolving Loan Commitment in effect on such day is less than 33% of the
Total Dollar Facility Revolving Loan Commitment as in effect on such day,
0.500%. For purposes of this definition, the Total Unutilized Dollar Facility
Revolving Loan Commitment and the Total Dollar Facility Revolving Loan
Commitment as in effect on any day shall be determined after the close of
business (New York time) on such day, following adjustments to such amounts for
activity on such day.

                                     -152-



                  "Applicable Margin" initially shall mean a percentage per
annum equal to (i) in the case of Tranche A Term Loans maintained as (A) Base
Rate Loans, 2.25% and (B) Eurodollar Loans, 3.25%; (ii) in the case of Tranche B
Term Loans maintained as (A) Base Rate Loans, 2.75% and (B) Eurodollar Loans,
3.75%; (iii) in the case of Revolving Loans maintained as (A) Base Rate Loans,
2.25% and (B) Euro Rate Loans, 3.25%; and (iv) in the case of Swingline Loans
maintained as (A) Base Rate Loans, 2.25% and (B) Euro Rate Loans, 3.25%. From
and after each day of delivery of any certificate delivered in accordance with
the first sentence of the following paragraph indicating an entitlement to a
different margin for any Tranche of Loans (other than Tranche B Term Loans) than
that described in the immediately preceding sentence (each, a "Start Date") to
and including the applicable End Date described below, the Applicable Margins
for such Tranches of Loans (hereinafter, the "Adjustable Applicable Margins")
shall be those set forth below opposite the Leverage Ratio indicated to have
been achieved in any certificate delivered in accordance with the following
sentence:



                                              Multicurrency
                         Multicurrency      Facility Revolving
                       Facility Revolving     Loan, Dollar
                        Loan and Dollar     Facility Revolving      Tranche A         Tranche A        Swingline
                           Facility             Loan and            Term Loan         Term Loan          Loan
                         Revolving Loan      Swingline Loan         Euro Rate         Base Rate        Euro Rate
   Leverage Ratio       Euro Rate Margin     Base Rate Margin        Margin            Margin           Margin
   --------------       ----------------     ----------------        ------            ------           ------
                                                                                        
Equal to or greater           3.00                 2.00               3.00              2.00             3.00
than 3.5 to 1.0 but
less than 4.0 to 1.0

Equal to or greater           2.75                 1.75               2.75              1.75             2.75
than 3.0 to 1.0 but
less than 3.5 to 1.0

Less than 3.0 to 1.0          2.50                 1.50               2.50              1.50             2.50


                  The Leverage Ratio used in a determination of Adjustable
Applicable Margins shall be determined based on the delivery of a certificate of
Holdings (each, a "Quarterly Pricing Certificate") by an Authorized Officer of
Holdings to the Administrative Agent (with a copy to be sent by the
Administrative Agent to each Lender), within 45 days of the last day of any
Fiscal Quarter of Holdings, which certificate shall set forth the calculation of
the Leverage Ratio as at the last day of the Test Period ended immediately prior
to the relevant Start Date (but determined on a Pro Forma Basis solely to give
effect to all Permitted Acquisitions (if any) and all Significant Asset Sales
(if any) consummated on or prior to the date of delivery of such certificate and
any Indebtedness incurred, assumed or permanently repaid in connection
therewith) and the Adjustable Applicable Margins which shall be thereafter
applicable (until same are changed or cease to apply in accordance with the
following sentences); provided that at the time of the consummation of any
Permitted Acquisition or Significant Asset Sale, an Authorized Officer of
Holdings shall deliver to the Administrative Agent a certificate setting forth
the calculation of the Leverage Ratio on a Pro Forma Basis (solely to give
effect to all Permitted Acquisitions, if any, and all Significant Asset Sales
(if any) consummated on or prior to the date of the delivery of

                                     -153-



such certificate and any Indebtedness incurred or assumed in connection
therewith) as of the last day of the last Calculation Period ended prior to the
date on which such Permitted Acquisition or Significant Asset Sale is
consummated for which financial statements have been made available (or were
required to be made available) pursuant to Section 8.01(a) or (b), as the case
may be, and the date of such consummation shall be deemed to be a Start Date and
the Adjustable Applicable Margins which shall be thereafter applicable (until
same are changed or cease to apply in accordance with the following sentences)
shall be based upon the Leverage Ratio as so calculated. The Adjustable
Applicable Margins so determined shall apply, except as set forth in the
succeeding sentence, from the relevant Start Date to the earliest of (x) the
date on which the next certificate is delivered to the Administrative Agent, (y)
the date on which the next Permitted Acquisition or Significant Asset Sale is
consummated or (z) the date which is 45 days following the last day of the Test
Period in which the previous Start Date occurred (such earliest date, the "End
Date"), at which time, if no certificate has been delivered to the
Administrative Agent indicating an entitlement to new Adjustable Applicable
Margins (and thus commencing a new Start Date), the Adjustable Applicable
Margins shall be those set forth in the first sentence of this definition (such
Adjustable Applicable Margins as so determined, the "Highest Adjustable
Applicable Margins"). Notwithstanding anything to the contrary contained above
in this definition, the Adjustable Applicable Margins shall be the Highest
Adjustable Applicable Margins (x) at all times during which there shall exist
any Specified Default or any Event of Default and (y) at all times prior to the
date of delivery of the financial statements pursuant to Section 8.01(b) for the
Fiscal Quarter ended September 30, 2003.

                  "Applicable Multicurrency Facility Commitment Fee Percentage"
shall mean, for any day, (i) in the event the Total Unutilized Multicurrency
Facility Revolving Loan Commitment in effect on such day is greater than or
equal to 66% of the Total Multicurrency Facility Revolving Loan Commitment as in
effect on such day, 1.00%, (ii) in the event the Total Unutilized Multicurrency
Facility Revolving Loan Commitment in effect on such day is (x) greater than or
equal to 33% of the Total Multicurrency Facility Revolving Loan Commitment as in
effect on such day and (y) less than 66% of the Total Multicurrency Facility
Revolving Loan Commitment as in effect on such day, 0.750%, and (iii) in the
event the Total Unutilized Multicurrency Facility Revolving Loan Commitment in
effect on such day is less than 33% of the Total Multicurrency Facility
Revolving Loan Commitment as in effect on such day, 0.500%. For purposes of this
definition, the Total Unutilized Multicurrency Facility Revolving Loan
Commitment and the Total Multicurrency Facility Revolving Loan Commitment as in
effect on any day shall be determined after the close of business (New York
time) on such day, following adjustments to such amounts for activity on such
day.

                  "Applicable Prepayment Percentage" shall mean, at any time,
(I) for purposes of Section 4.02(g), 75%; provided that, so long as no Default
or Event of Default is then in existence, (i) if at any time the Leverage Ratio
is less than 3.75:1.00 (as set forth in an officer's certificate delivered
pursuant to Section 8.01(e) for the Fiscal Quarter or Fiscal Year of Holdings
then last ended), the Applicable Prepayment Percentage shall instead be 50% and
(ii) if at any time the Leverage Ratio is less than 3.25:1.00 (as set forth in
an officer's certificate delivered pursuant to Section 8.01(e) for the Fiscal
Quarter or Fiscal Year of Holdings then last ended), the Applicable Prepayment
Percentage shall instead be 0% and (II) for purposes of Section 4.02(e),

                                     -154-



100%; provided that, so long as (i) no Default or Event of Default is then in
existence, (ii) the Credit Agreement Parties shall have satisfied all of their
obligations pursuant to Section 8.22, (iii) the Capital Call Agreement shall
have terminated in accordance with its terms, (iv) the Bank Debt Leverage Ratio
is less than 1.50:1.00 (as set forth in an officer's certificate delivered
pursuant to Section 8.01(e) for the Fiscal Quarter or Fiscal Year of Holdings
then last ended), and (v) Holdings and the U.S. Borrower shall have
substantially concurrently (I) applied 50% of the Net Cash Proceeds from the
respective issuance of equity as a mandatory repayment and/or commitment
reduction pursuant to Section 4.02(e) and (II) utilized 50% of the Net Cash
Proceeds not required to be applied as a mandatory repayment and/or commitment
reduction pursuant to Section 4.02(e) (as a result of the reduction of the
Applicable Prepayment Percentage as contemplated by this proviso) to redeem New
Senior Notes or Existing Senior Notes in accordance with the requirements of
clause (z) of the proviso appearing in Section 9.14(i), the Applicable
Prepayment Percentage shall instead be 50%.

                  "Asset Sale" shall mean any sale, transfer or other
disposition by Holdings or any of its Subsidiaries to any Person other than the
U.S. Borrower or any Wholly-Owned 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 Holdings of its own capital stock) of Holdings or such Subsidiary other
than (i) sales, transfers or other dispositions of inventory made in the
ordinary course of business, (ii) other sales and dispositions that generate Net
Sale Proceeds of less than $5,000,000 in the aggregate in any Fiscal Year of
Holdings, (iii) the Sale-Leaseback Transaction consummated on the Initial
Borrowing Date or (iv) sales or liquidations of Cash Equivalents, it being
understood and agreed that the grant of a Lien by Holdings or any of its
Subsidiaries in favor of another Person shall not in and of itself constitute an
"Asset Sale" for purposes of this definition.

                  "Assignment and Assumption Agreement" shall mean the
Assignment and Assumption Agreement substantially in the form of Exhibit K
(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, 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, the Swingline Lender, the
respective Issuing Lender and the respective Bank Guaranty Issuer; (ii)
delivering financial information and officer's certificates pursuant to this
Agreement, the chief financial officer, any treasurer or other financial officer
of Holdings or 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 Holdings or the U.S. Borrower.

                  "Available Currency" shall mean (i) with respect to Tranche A
Term Loans, Tranche B Term Loans, Dollar Facility Revolving Loans, Dollar
Facility Swingline Loans and Dollar Facility Letters of Credit, Dollars and (ii)
with respect to Multicurrency Facility Revolving Loans, Multicurrency Facility
Swingline Loans, Multicurrency Facility Letters of Credit and Bank Guaranties,
Dollars and Euros.

                                     -155-



                  "Bank Debt Leverage Ratio" shall mean on any date of
determination the ratio of (i) Consolidated Bank 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 Bank Debt Leverage Ratio shall be determined on a Pro Forma
Basis in accordance with clause (iv) of the definition of Pro Forma Basis
contained herein.

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

                  "Bank Guaranty Fees" shall have the meaning provided in
Section 3.01(e).

                  "Bank Guaranty Issuer" shall mean (i) any RL Lender (and any
of such RL Lender's affiliates and/or branches) which at the request of the
Bermuda Borrower and with the consent of the Administrative Agent agrees, in
such RL Lender's sole discretion, to become a Bank Guaranty Issuer for the
purpose of issuing Bank Guaranties pursuant to Section 2B and (ii) with respect
to the Existing Bank Guaranties, the Lender (and any of such 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 and (ii) the aggregate amount of all Unreimbursed
Payments (taking the Dollar Equivalent of any amounts owed in Euros) in respect
of all Bank Guaranties at such time.

                  "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 corporation 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 and (y) the
Prime Lending Rate at such time.

                  "Base Rate Loan" shall mean (i) each Dollar Denominated
Swingline Loan, (ii) each other Dollar Denominated 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 and (iii) each outstanding
Multicurrency Facility Revolving Loan and Multicurrency Facility Swingline Loan
after the conversion thereof pursuant to Section 1.14.

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

                  "Bermuda Borrower Dollar Facility Letter of Credit" shall mean
each Dollar Facility Letter of Credit (which must be denominated in Dollars)
issued for the account of the Bermuda Borrower pursuant to Section 2A.01.

                  "Bermuda Borrower Dollar Facility Letter of Credit
Outstandings" shall mean, at any time, the sum of (i) the aggregate Stated
Amount of all outstanding Bermuda Borrower

                                     -156-



Dollar Facility Letters of Credit and (ii) the aggregate amount of all Unpaid
Drawings in respect of all Bermuda Borrower Dollar Facility Letters of Credit.

                  "Bermuda Borrower Dollar Facility Revolving Loan" shall have
the meaning provided in Section 1.01(d).

                  "Bermuda Borrower Dollar Facility Revolving Note" shall have
the meaning provided in Section 1.05(a).

                  "Bermuda Borrower Dollar Facility Swingline Loan" shall have
the meaning provided in Section 1.01(f).

                  "Bermuda Borrower Dollar Facility Swingline Note" shall have
the meaning provided in Section 1.05(a).

                  "Bermuda Partnership" shall mean Dole Foreign Holdings, Ltd.,
a limited liability corporation 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(d).

                  "Bermuda Partnership Partner #2" shall mean Dole Ocean Cargo
Express, Inc., a corporation organized under the laws of Nevada and a
Wholly-Owned Subsidiary of the U.S. Borrower, and any successor thereto by way
of a merger or consolidation permitted by Section 9.01(d).

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

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

                  "B/G Supportable Indebtedness" shall mean (i) obligations of
the Wholly-Owned Foreign Subsidiaries of the U.S. Borrower (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, custom
authorities or with respect to import and/or export licenses and (ii) such other
obligations of Wholly-Owned Foreign Subsidiaries of the U.S. Borrower 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.

                  "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 (or from
the Swingline Lender, in the case of

                                     -157-



Swingline Loans) on a given date (or resulting from a conversion or conversions
on such date), having in the case of Euro Rate Loans (other than Euro
Denominated Swingline Loans) the same Interest Period, provided that Base Rate
Loans incurred pursuant to Section 1.10(b) shall be considered part of the
related Borrowing of Eurodollar Loans.

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

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

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

                  "Capital Call Agreement" shall have the meaning provided such
term in Section 5.14(e).

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

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

                  "Capitalized Lease Obligations" of any Person shall mean all
obligations under 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, pounds sterling
and, in the case of any of Foreign Subsidiaries of the U.S. Borrower, such local
currencies held by them from time

                                     -158-



to time in the ordinary course of their businesses, (ii) securities issued or
directly fully guaranteed or insured by the governments of the United States,
the United Kingdom, Sweden, Switzerland, Japan, Canada and members of the
European Union or any agency or instrumentality thereof (provided that the full
faith and credit of the respective such government is pledged in support
thereof) having maturities of not more than six months from the date of
acquisition, (iii) securities issued by any state of the United States or any
political subdivision of any such state or any public instrumentality thereof
maturing within six months from the date of acquisition thereof and, at the time
of acquisition, having one of the two highest ratings obtainable from either S&P
or Moody's, (iv) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition, bankers'
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case with any domestic commercial bank or commercial bank of a
foreign country recognized by the United States, (x) in the case of a domestic
commercial bank, having capital and surplus in excess of $500,000,000 and
outstanding debt which is rated "A" (or similar equivalent thereof) or higher by
at least one nationally recognized statistical rating organization (as defined
under Rule 436 under the Securities Act) and (y) in the case of a foreign
commercial bank, having capital and surplus in excess of $250,000,000 (or the
foreign currency equivalent thereof), (v) repurchase obligations with a term of
not more than seven days for underlying securities of the types described in
clauses (ii) and (iv) above entered into with any financial institution meeting
the qualifications specified in clause (iv) above, (vi) commercial paper having
a rating of at least A-1 from S&P or 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) Holdings shall at any time
cease to own directly 100% of the 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 Permitted Holders shall
at any time and for any reason fail to own at least 75% of both the economic and
voting interest in Holdings' capital stock, (iv) the Board of Directors of
Holdings shall cease to consist of a majority of Continuing Directors, or (v) a
"change of control" or similar event shall occur as provided in any New Senior
Notes Documents, any Existing Senior Notes Document or any Qualified Preferred
Stock (or certificate of designation governing the same).

                  "Change of Law" shall have the meaning provided in Section
10.06.

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

                                     -159-



                  "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 cash and Cash Equivalents delivered as collateral pursuant to
Section 4.02 or 10 or any Credit Document and all Additional Collateral, if any.

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

                  "Collective Bargaining Agreements" shall have the meaning
provided in Section 5.19.

                  "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.

                  "Commitment" shall mean any of the commitments of any Lender,
i.e., whether the Tranche A Term Loan Commitment, the Tranche B Term Loan
Commitment, the Multicurrency Facility Revolving Loan Commitment or the Dollar
Facility Revolving Loan Commitment of such Lender.

                  "Common Equity Financing" shall have the meaning provided in
Section 5.09(a).

                  "Common Equity Financing Documents" shall mean all of the
agreements governing or relating to the Common Equity Financing, in each case as
the same may be amended, modified and/or supplemented from time to time in
accordance with the terms thereof.

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

                  "Consolidated Bank Debt" at any time shall mean the sum of (i)
the aggregate principal amount of all Term Loans outstanding at such time, (ii)
the Aggregate Dollar Facility RL Exposure at such time and (iii) the Aggregate
Multicurrency Facility RL Exposure at such time.

                  "Consolidated Current Assets" shall mean, at any time, the
current assets of Holdings and its Consolidated Subsidiaries at such time
determined on a consolidated basis.

                  "Consolidated Current Liabilities" shall mean, at any time,
the current liabilities of Holdings and its Consolidated Subsidiaries determined
on a consolidated basis, but excluding the current portion of, and accrued but
unpaid interest on, any Indebtedness under this Agreement and any other
long-term Indebtedness which would otherwise be included therein.

                                     -160-



                  "Consolidated Debt" shall mean, at any time, the sum of
(without duplication) (i) all Indebtedness of Holdings 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
Holdings and its Consolidated Subsidiaries in accordance with U.S. GAAP, (ii)
all Indebtedness of Holdings and its Consolidated Subsidiaries of the type
described in clauses (ii) and (vii) of the definition of Indebtedness and (iii)
all Contingent Obligations of Holdings and its Consolidated Subsidiaries in
respect of Indebtedness of any third Person of the type referred to in preceding
clauses (i) and (ii); 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 Holdings 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 Debt", (x) for purposes of this definition,
the amount of Indebtedness in respect of the Interest Rate Protection
Agreements, Other Hedging Agreements and Commodities Agreements shall be at any
time the unrealized net loss position, if any, of Holdings and/or its
Consolidated Subsidiaries thereunder on a marked-to-market basis determined no
more than one month prior to such time, (y) obligations arising under Synthetic
Leases shall be included in determining Consolidated Debt (other than (I)
obligations under the HQ Lease Agreements, to the extent such obligations are
outstanding under Section 9.04(xxii) and (II) successive refinancings of the
obligations described in preceding clause (I), to the extent such obligations
are outstanding under Section 9.04(vii)) and (z) any Preferred Equity of
Holdings or any of its Consolidated Subsidiaries (but excluding any Qualified
Preferred Stock) shall be treated as Indebtedness, with an amount equal to the
greater of the liquidation preference or the maximum fixed repurchase price of
any such outstanding Preferred Equity deemed to be a component of Consolidated
Debt.

                  "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 Holdings 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 non-cash charges accrued in such period in connection with
the termination of the U.S. Borrower's long-term employee incentive plan during
such period, to the extent same (I) were deducted in arriving at Consolidated
EBIT for such period and (II) were accrued after March 22, 2003, (iii) any other
non-cash charges incurred in such period to the extent that same were deducted
in arriving at Consolidated EBIT for such period, and (iv) the amount of all
fees and expenses incurred in connection with the Transaction for such period to
the extent same were deducted in arriving at Consolidated EBIT for such period
and (v) 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

                                     -161-



made during such period in connection with non-cash charges accrued in a prior
period in connection with the termination of the U.S. Borrower's long-term
employee incentive plan, to the extent such non-cash charges were added back
pursuant to clause (x)(ii) above in a prior period and (iii) 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)(iii) above in a prior period. Notwithstanding
anything to the contrary contained above, for purposes of determining the
Leverage Ratio, to the extent Consolidated EBITDA is to be determined for any
Test Period which ends prior to the first anniversary of the Initial Borrowing
Date, Consolidated EBITDA for all portions of such period occurring prior to the
Initial Borrowing Date shall be calculated in accordance with the definition of
Test Period contained herein. It is understood and agreed that Consolidated
EBITDA (as calculated pursuant to this definition) is not required to be
adjusted to reflect a reduction in rent expense (arising as a result of the
implementation of FASB Interpretation No. 46 ("Consolidation of Variable
Interest Entities")) by virtue of the application of Section 13.07 (which has
the effect of, among other things, freezing U.S. GAAP as used in determining
Consolidated EBITDA on the terms provided therein and eliminating the effects of
such accounting change for purposes of this definition).

                  "Consolidated Fixed Charge Coverage Ratio" shall mean, for any
period, the ratio of (x) Consolidated EBITDA for such period to (y) Consolidated
Fixed Charges for such period.

                  "Consolidated Fixed Charges" shall mean, for any period, the
sum of (i) Consolidated Interest Expense for such period, (ii) the scheduled
principal amount of all amortization payments on all Indebtedness (including the
principal component of all Capitalized Lease Obligations but excluding payments
pursuant to the Refinancing) of Holdings and its Consolidated Subsidiaries for
such period (as determined on the first day of the respective period), (iii) the
amount of all Capital Expenditures made by Holdings and its Consolidated
Subsidiaries during such period (other than Capital Expenditures made pursuant
to Section 9.12(c), (d) or (e)), (iv) all Dividends (excluding dividends paid in
kind through the issuance of additional shares of capital stock of Holdings)
actually paid by Holdings during such period and (v) the amount of all cash
payments made by Holdings and its Consolidated Subsidiaries during such period
in respect of income taxes or income tax liabilities, net of any refunds
received during such period.

                  "Consolidated Interest Coverage Ratio" shall mean, for any
period, the ratio of (x) Consolidated EBITDA for such period to (y) Consolidated
Interest Expense for such period.

                  "Consolidated Interest Expense" shall mean, for any period,
(i) the total consolidated interest expense of Holdings and its Consolidated
Subsidiaries (including, without limitation, all commissions, discounts and
other fees and charges owed with respect to letters of credit and bank
guaranties) for such period (calculated without regard to any limitations on
payment thereof), adjusted to exclude (to the extent same would otherwise be
included in the calculation above in this clause (i)) the amortization of any
deferred financing costs for such period, plus (ii) without duplication, (x)
that portion of Capitalized Lease Obligations of Holdings and its Consolidated
Subsidiaries on a consolidated basis representing the interest factor for such
period and (y) the "deemed interest expense" (i.e., the interest expense which

                                     -162-



would have been applicable if the respective obligations were structured as
on-balance sheet financing arrangements) with respect to all Indebtedness of
Holdings and its Consolidated Subsidiaries of the type described in clause
(viii) of the definition of Indebtedness contained herein for such period.

                  "Consolidated Net Income" shall mean, for any period, the net
income (or loss) of Holdings 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 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 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 any such
assets so sold shall be comprised of "non-core" assets which (i) are not
material to the operations of the U.S. Borrower and its Subsidiaries and (ii)
generated an insignificant portion of Consolidated EBITDA during the twelve
month period prior to the date of such 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

                                     -163-



business. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the lesser of (x) the stated or determinable amount of the
primary obligation in respect of which such Contingent Obligation is made or, if
not stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith and (y) the stated amount of such
Contingent Obligation.

                  "Continuing Directors" shall mean the directors of Holdings on
the Initial Borrowing Date and each other director if such director's election
to, or nomination for the election to, the Board of Directors of Holdings is
recommended or approved by a majority of then Continuing Directors.

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

                  "Credit Agreement Party" shall mean Holdings and each
Borrower.

                  "Credit Documents" shall mean this Agreement, the Notes, each
Subsidiaries Guaranty, the Capital Call Agreement, the Intercompany
Subordination Agreement, each Special Colombian Put Note and each Special
Colombian Put Note Agreement (after the execution and delivery thereof), the
Canadian Bond, each Security Document 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 Sections 8.11, 8.12 and/or 9.17.

                  "Credit Event" shall mean the making of a Loan (other than a
Revolving Loan made pursuant to a Mandatory Borrowing), the issuance of a Letter
of Credit or the issuance of a Bank Guaranty.

                  "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.

                  "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.

                  "Dividend" shall have the meaning provided in Section 9.06.

                                     -164-



                  "Documents" shall mean and include (i) the Credit Documents,
(ii) the Acquisition Documents, (iii) the Common Equity Financing Documents,
(iv) the New Senior Notes Documents, (v) the Intercompany Distribution
Transaction Documents, (vi) the Sale-Leaseback Transaction Documents, (vii)
Existing Senior Notes Documents and the Existing Senior Notes Supplement, (viii)
the Foreign Asset Transfer Documents and (ix) the Refinancing Documents.

                  "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 and (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 and (ii) the aggregate amount
of all Unpaid Drawings with respect to Dollar Denominated Letters of Credit at
such time.

                  "Dollar Denominated Loan" shall mean all Loans denominated in
Dollars, which shall include each Tranche A Term Loan, each Tranche B Term Loan,
each Dollar Facility Revolving Loan, each Dollar Facility Swingline Loan, each
Multicurrency Facility Revolving Loan made in Dollars and each Multicurrency
Facility Swingline Loan made in Dollars, as well as each Multicurrency Facility
Revolving Loan or Multicurrency Facility Swingline Loan converted into Dollars
in accordance with the provisions of Section 1.14.

                  "Dollar Denominated Revolving Loan" shall mean all Revolving
Loans incurred in Dollars, including all Multicurrency Facility Revolving Loans
denominated in Dollars and all Dollar Facility Revolving Loans.

                  "Dollar Denominated Swingline Loan" shall mean all Swingline
Loans incurred in Dollars, including all Multicurrency Facility Swingline Loans
denominated in Dollars and all Dollar Facility Swingline Loans.

                  "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

                                     -165-



for purchase on such date with respect to Euro Denominated Revolving Loans and
on the date of any determination thereof for purchase on such date with respect
to Euro Denominated Swingline Loans (or, in the case of any determination
pursuant to Section 1.14 or 13.23 or Section 26 (or any analogous provision) of
any Subsidiaries Guaranty, on the date of determination); provided that (w) the
Dollar Equivalent of any Unpaid Drawing shall be determined at the time the
drawing under the related Letter of Credit was paid or disbursed by the Issuing
Lender, (x) the Dollar Equivalent of any Unreimbursed Payment shall be
determined at the time the payment under the related Bank Guaranty was made or
disbursed by the respective Bank Guaranty Issuer, (y) following the occurrence
of a Sharing Event, the Dollar Equivalent of any Unpaid Drawing or unreimbursed
payment under a Multicurrency Facility Letter of Credit expressed in Euros shall
be determined on the later of the time the drawing under the related Letter of
Credit was paid or disbursed by the Issuing Lender or the date of the occurrence
of the Sharing Event and (z) following the occurrence of a Sharing Event, the
Dollar Equivalent of any Unreimbursed Payment under a Bank Guaranty expressed in
Euros shall be determined on the later of the time the payment under the related
Bank Guaranty was made or disbursed by the Bank Guaranty Issuer or the date of
the occurrence of the Sharing Event, provided further, that for purposes of (x)
determining compliance with Sections 1.01(c), (e) and (g), 2A.01(c), 2B.01(c),
4.01(a) and 6A.01 and (y) calculating Fees pursuant to Section 3.01 (except Fees
which are expressly required to be paid in a currency other than Dollars
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 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) on the last Business Day of each calendar month,
provided, however, that at any time during a calendar month, if the Aggregate
Multicurrency Facility RL Exposure (for the purposes of the determination
thereof, using the Dollar Equivalent as recalculated based on the spot exchange
rate therefor as quoted in 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) on the respective date of determination pursuant to this
exception) would exceed 85% of the Total Multicurrency Facility Revolving Loan
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 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), which rates shall remain
in effect until the last Business Day of such calendar month or such earlier
date, if any, as the rate is reset pursuant to this proviso. 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.

                  "Dollar Facility Letter of Credit" shall mean each Letter of
Credit (which must be denominated in Dollars) issued to the U.S. Borrower or the
Bermuda Borrower pursuant to Section 2A.01 and designated as such by the
respective Borrower in the respective Letter of Credit Request.

                  "Dollar Facility Letter of Credit Outstandings" shall mean, at
any time, the sum of (i) the aggregate Stated Amount of all outstanding Dollar
Facility Letters of Credit and (ii) the aggregate amount of all Unpaid Drawings
in respect of all Dollar Facility Letters of Credit.

                                     -166-



                  "Dollar Facility RL Lender" shall mean any Lender with a
Dollar Facility Revolving Loan Commitment (without giving effect to any
termination of the Total Dollar Facility Revolving Loan Commitment if any Dollar
Facility Swingline Loans or Dollar Facility Letter of Credit Outstandings remain
outstanding) or outstanding Dollar Facility Revolving Loans (or any
participation in any Dollar Facility Letter of Credit Outstandings).

                  "Dollar Facility RL Percentage" of any Dollar Facility RL
Lender at any time shall be that percentage which is equal to a fraction
(expressed as a percentage) the numerator of which is the Dollar Facility
Revolving Loan Commitment of such Dollar Facility RL Lender at such time and the
denominator of which is the Total Dollar Facility Revolving Loan Commitment at
such time, provided that if any such determination is to be made after the Total
Dollar Facility Revolving Loan Commitment (and the related Dollar Facility
Revolving Loan Commitments of the Lenders) has (or have) terminated, the
determination of such percentages shall be made immediately before giving effect
to such termination.

                  "Dollar Facility Revolving Loan" shall have the meaning
provided in Section 1.01(d).

                  "Dollar Facility Revolving Loan Commitment" shall mean, for
each Lender, the amount set forth opposite such Lender's name on Schedule I
hereto directly below the column entitled "Dollar Facility Revolving Loan
Commitment", as same may be (x) reduced from time to time and/or terminated
pursuant to Section 3.02, 3.03, 4.02 and/or 10 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).

                  "Dollar Facility Revolving Note" shall have the meaning
provided in Section 1.05(a).

                  "Dollar Facility Swingline Loan" shall have the meaning
provided in Section 1.01(f).

                  "Dollar Facility Swingline Note" shall have the meaning
provided in Section 1.05(a).

                  "Domestic Subsidiary" shall mean, as to any Person, any
Subsidiary of such Person incorporated or organized in the United States or any
State or territory thereof.

                  "Effective Date" shall have the meaning provided in Section
13.10.

                  "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 Holdings and its Subsidiaries and Affiliates.

                  "Employee Benefit Plans" shall have the meaning set forth in
Section 5.19.

                                     -167-



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

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

                  "Equity Investors" shall mean, collectively, David H. Murdock,
the David H. Murdock Living Trust and Castle & Cooke Holdings, Inc.

                  "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 at the date of this Agreement and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.

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

                  "Euro B/G Face Amount" of each Euro Denominated Bank Guaranty
shall, at any time, mean the maximum amount payable under such Bank Guaranty
(expressed in Euros) (in each case determined without regard to whether any
conditions to payment thereunder could then be met, but after giving effect to
all previous payments (if any) made thereunder).

                  "Euro Denominated Bank Guaranty" shall mean each Bank Guaranty
denominated in Euros.

                                     -168-



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

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

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

                  "Euro Denominated Loan" shall mean all Loans denominated in
Euros, including all Euro Denominated Revolving Loans and all Euro Denominated
Swingline Loans.

                  "Euro Denominated Revolving Loan" shall mean each
Multicurrency Facility Revolving Loan denominated in Euros at the time of the
incurrence thereof.

                  "Euro Denominated Swingline Loan" shall mean each
Multicurrency Facility Swingline Loan denominated in Euros at the time of the
incurrence thereof.

                  "Euro Equivalent" shall mean, at any time for the
determination thereof, the amount of Euros which could be purchased with the
amount of Dollars involved in such computation at the spot rate of exchange
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 with respect to Euro Denominated Revolving Loans and on
the date of any determination thereof for purchase on such date with respect to
Euro Denominated Swingline Loans (or, in the case of any determination pursuant
to Section 1.14 or 13.23 or Section 26 (or any analogous provision) of any
Subsidiaries Guaranty, on the date of determination).

                  "Euro L/C Stated Amount" of each Euro Denominated Letter of
Credit shall, at any time, mean the maximum amount available to be drawn
thereunder (expressed in Euros) (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).

                  "Euro LIBOR" shall mean, with respect to each Borrowing of
Euro Denominated Revolving Loans, (i) the rate per annum for deposits in Euros
as determined by the Administrative Agent for a period corresponding to the
duration of the relevant Interest Period which appears on Reuters Page
EURIBOR-01 (or any successor page) at approximately 11:00 A.M. (Brussels time)
on the date which is two Business Days prior to the commencement of such
Interest Period or (ii) if such rate is not shown on Reuters Page EURIBOR-01 (or
any successor page), the average offered quotation to prime banks in the
Euro-zone interbank market by the Administrative Agent for Euro deposits of
amounts comparable to the principal amount of the Euro Denominated Loan to be
made by the Administrative Agent as part of such Borrowing with maturities
comparable to the Interest Period to be applicable to such Loan (rounded upward
to the next whole multiple of 1/16 of 1%), determined as of 11:00 A.M. (Brussels
time) on the date which is two Business Days prior to the commencement of such
Interest Period; provided that in

                                     -169-



the event the Administrative Agent has made any determination pursuant to
Section 1.10(a)(i) in respect of Loans denominated in Euros, or in the
circumstances described in clause (i) to the proviso to Section 1.10(b) in
respect of Loans denominated in Euros, Euro LIBOR determined pursuant to this
definition shall instead be the rate determined by the Administrative Agent as
the all-in-cost of funds for the Administrative Agent (or such other Lender) to
fund a Borrowing of Loans denominated in Euros with maturities comparable to the
Interest Period applicable thereto.

                  "Euro Rate" shall mean and include each of the Eurodollar
Rate, Euro LIBOR and the Overnight Euro Rate.

                  "Euro Rate Loan" shall mean each Eurodollar Loan and each Euro
Denominated Loan.

                  "Eurodollar Loans" shall mean each Dollar Denominated Loan
(excluding Swingline Loans) 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 U.S. Dollar Denominated Loan, (i) the arithmetic average (rounded
upwards to the nearest 1/16 of 1%) of the offered quotation to first class banks
in the interbank Eurodollar market by DBAG for U.S. dollar deposits of amounts
in immediately available funds comparable to the principal amount of the
applicable Eurodollar Loan for which the Eurodollar Rate is being determined
with maturities comparable to the Interest Period for which such Eurodollar Rate
will apply, as of approximately 10:00 A.M. (New York time) on the Interest
Determination Date divided by (ii) a percentage equal to 100% minus the then
stated maximum rate of all reserve requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves) applicable to
any member bank of the Federal Reserve System in respect of Eurocurrency
liabilities as defined in Regulation D (or any successor category of liabilities
under Regulation D). The determination of the Eurodollar Rate by the
Administrative Agent shall be conclusive and binding on the Borrowers absent
demonstrable error.

                  "Euros" and the designation "(euro)" 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" shall mean, for any period, the remainder
of (a) the sum of, without duplication, (i) Adjusted Consolidated Net Income for
such period and (ii) the decrease, if any, in Adjusted Consolidated Working
Capital from the first day to the last day of such period, minus (b) the sum of,
without duplication, (i) the aggregate amount of all Capital Expenditures made
by Holdings and its Subsidiaries during such period (other than Capital
Expenditures to the extent financed with equity proceeds, Equity Interests,
asset sale proceeds, insurance proceeds or Indebtedness (other than with
Revolving Loans or Swingline Loans)), (ii) the aggregate amount of permanent
principal payments of Indebtedness for borrowed money of Holdings and its
Subsidiaries and the permanent repayment of the principal component of
Capitalized Lease Obligations of Holdings and its Subsidiaries during such
period (other than

                                     -170-



(A) repayments to the extent made with asset sale proceeds, equity proceeds,
insurance proceeds or Indebtedness and (B) repayments of Loans, provided that
repayments of Loans shall only be deducted in determining Excess Cash Flow if
such repayments were (x) required as a result of a Scheduled Repayment under
Section 4.02(b) or (y) made as a voluntary prepayment with internally generated
funds (but in the case of a voluntary prepayment of Revolving Loans or Swingline
Loans, only to the extent accompanied by a voluntary reduction to the Total
Revolving Loan Commitment in an amount equal to such prepayment)) and (iii) the
increase, if any, in Adjusted Consolidated Working Capital from the first day to
the last day of such period.

                  "Excess Cash Flow Payment Period" shall mean, with respect to
any Excess Cash Payment Date, (i) in the case of the first Excess Cash Payment
Date occurring after the Initial Borrowing Date, the period commencing on the
first day of the 2d Fiscal Quarter of Fiscal Year 2003 and ending on December
31, 2003 and (ii) in the case of each subsequent Excess Cash Payment Date, the
immediately preceding Fiscal Year of Holdings.

                  "Excess Cash Payment Date" shall mean the date occurring 90
days after the last day of a Fiscal Year of Holdings (commencing with the Fiscal
Year of Holdings ended closest to December 31, 2003).

                  "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.

                  "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 (but before giving effect to any actions to occur
on such date pursuant to Section 1.14) of which (a) the numerator shall be the
sum of (i) the RL Percentage of such Lender of (x) the aggregate outstanding
principal of all Revolving Loans and Swingline Loans (taking the Dollar
Equivalents of any amounts expressed in currencies other than Dollars on the
date of the occurrence of the Sharing Event), (y) the aggregate amount of Letter
of Credit Outstandings and (z) the aggregate amount of Bank Guaranty
Outstandings and (ii) the aggregate principal amount of all outstanding Term
Loans of such Lender, and (b) the denominator of which shall be the sum of (i)
the sum of (x) the aggregate outstanding principal of all Revolving Loans and
Swingline Loans (taking the Dollar Equivalents of any amounts expressed in
currencies other than Dollars on the date of the occurrence of the Sharing
Event), (y) the aggregate amount of Letter of Credit Outstandings and (z) the
aggregate amount of Bank Guaranty Outstandings, 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 the Initial Borrowing Date) 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 Holdings or any of its Subsidiaries, except to the extent
required to be pledged pursuant to Section 8.23; provided that (x) the
collateral described in preceding clauses (i) and

                                     -171-



(ii) shall cease to constitute "Excluded Collateral" upon the repayment in full
of all Existing 2009 Senior Notes and 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 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 XV; provided that any Foreign Subsidiary listed
on Part B of Schedule XV 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 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, 10.12(b), 10.12(c) and/or 10.13;
provided that (i) any such deficiency or default shall relate solely to a
Foreign Subsidiary of Holdings (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 10.13
had not been taken) shall not exceed $15,000,000.

                  "Existing Credit Agreement" shall mean that certain Credit
Agreement, dated as of July 29, 1996, among the U.S. Borrower and various
financial institutions, as in effect on the Initial Borrowing Date.

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

                  "Existing Indebtedness Agreements" shall have the meaning
provided in Section 5.19.

                  "Existing Bank Guaranties" shall have the meaning provided in
Section 2B.01(d).

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

                  "Existing Senior Notes To Be Refinanced" shall mean and
include (i) the Existing 2003 Senior Notes Documents and (ii) the Existing 2005
Senior Notes Documents.

                  "Existing Senior Notes Documents" shall mean and include (i)
the Existing 2009 Senior Notes Documents, (ii) the Existing 2013 Senior Notes
Documents, (iii) the Existing 2003 Senior Notes Documents and (iv) the Existing
2005 Senior Notes Documents.

                                     -172-



                  "Existing Senior Notes Indenture Supplement" shall have the
meaning provided in Section 5.10.

                  "Existing 2005 Senior Notes" shall mean the U.S. Borrower's
6-3/8% Senior Notes due 2005, issued pursuant to the Existing 2005 Senior Notes
Indenture, as in effect on the Initial Borrowing Date and as the same may be
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof.

                  "Existing 2005 Senior Notes Documents" shall mean the Existing
2005 Senior Notes, the Existing 2005 Senior Notes Indenture and all other
documents executed and delivered with respect to the Existing 2005 Senior Notes
or Existing 2005 Senior Notes Indenture, as in effect on the Initial Borrowing
Date and as the same may be amended, modified or supplemented from time to time
in accordance with the terms hereof and thereof.

                  "Existing 2005 Senior Notes Indenture" shall mean the
Indenture, dated as of July 15, 1993, among the U.S. Borrower and the trustee
therefor, as in effect on the Initial Borrowing Date and as the same may be
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof.

                  "Existing 2009 Senior Notes" shall mean the U.S. Borrower's
7-1/4% Senior Notes due 2009, issued pursuant to the Existing 2009 Senior Notes
Indenture, as in effect on the Initial Borrowing Date and as the same may be
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof.

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

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

                  "Existing 2003 Senior Notes" shall mean the U.S. Borrower's 7%
Senior Notes due 2003, issued pursuant to the Existing 2003 Senior Notes
Indenture, as in effect on the Initial Borrowing Date and as the same may be
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof.

                  "Existing 2003 Senior Notes Documents" shall mean the Existing
2003 Senior Notes, the Existing 2003 Senior Notes Indenture and all other
documents executed and delivered with respect to the Existing 2003 Senior Notes
or Existing 2003 Senior Notes Indenture, as in effect on the Initial Borrowing
Date and as the same may be amended, modified or supplemented from time to time
in accordance with the terms hereof and thereof.

                                     -173-



                  "Existing 2003 Senior Notes Indenture" shall mean the
Indenture, dated as of April 15, 1993, among the U.S. Borrower and the trustee
therefor, as in effect on the Initial Borrowing Date and as the same may be
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof.

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

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

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

                  "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, except as such term is
used in Section 2B.02 and except as provided in the definition of "Euro B/G Face
Amount", the "Face Amount" of each Euro Denominated Bank Guaranty shall be, on
any date of calculation, the Dollar Equivalent of the maximum amount payable in
Euros thereunder (determined without regard to whether any conditions to payment
could then be met but after giving effect to all previous payments made
thereunder).

                  "Facing Fee" shall have the meaning provided in Section
3.01(c).

                  "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 Holdings, or the
Subsidiary of Holdings selling such asset.

                  "Federal Funds Rate" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Lender 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

                                     -174-



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.

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

                  "Fleet" shall mean Fleet National Bank, in its individual
capacity, and any successor corporation thereto by merger, consolidation or
otherwise.

                  "Foreign Asset Transfer" shall have the meaning provided in
Section 5.08(b).

                  "Foreign Asset Transfer Documents" shall mean the various
documents and agreements entered into in connection with the Foreign Asset
Transfer.

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

                  "Foreign Credit Party Pledge Agreement" shall have the meaning
provided in Section 5.15(b).

                  "Foreign Mortgaged Property" shall mean each Real Property
located outside the United States and the States and territories thereof with
respect to which a Mortgage is required to be delivered pursuant to the terms of
this Agreement.

                                     -175-



                  "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 Holdings or
any one or more of its Subsidiaries primarily for the benefit of employees of
Holdings or any of its Subsidiaries residing outside the United States of
America, which plan, fund or other similar program provides, or results in,
retirement income, a deferral of income in contemplation of retirement or
payments to be made upon termination of employment, and which plan is not
subject to ERISA or the Code.

                  "Foreign Pledge Agreement" shall have the meaning provided in
Section 5.15(c).

                  "Foreign Security Agreement" shall have the meaning provided
in Section 5.17.

                  "Foreign Security Document" shall mean each Security Document
other than a U.S. Security Document.

                  "Foreign Subsidiaries Guaranty" shall have the meaning
provided in Section 5.14(b) and shall include any counterpart thereof and any
other similar guaranty executed and delivered by any Foreign Subsidiary of
Holdings pursuant to Section 8.11 or 9.17.

                  "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 Holdings (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.

                  "Foreign Unrestricted Subsidiary" of any Person shall mean any
Foreign Subsidiary of such Person that is an Unrestricted Subsidiary.

                  "Fronting Fee" shall have the meaning provided in Section
3.01(f).

                  "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 to the extent that such Person constitutes a Secured Creditor under
the Security Documents.

                  "Guarantors" shall mean and include Holdings, the U.S.
Borrower and each Subsidiary Guarantor.

                  "Guaranty" shall mean and include the Holdings Guaranty, the
U.S. Borrower's 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

                                     -176-



polychlorinated biphenyls, and radon gas; and (b) any chemicals, materials or
substances defined as or included in the definition of "hazardous substances,"
"hazardous wastes," "hazardous materials," "restricted hazardous materials,"
"extremely hazardous wastes," "restrictive hazardous wastes," "toxic
substances," "toxic pollutants," "contaminants" or "pollutants," or words of
similar meaning and regulatory effect.

                  "Highest Adjustable Applicable Margins" shall have the meaning
provided in the definition of Applicable Margin contained herein.

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

                  "Holdings Common Stock" shall have the meaning provided in
Section 7.13(a).

                  "Holdings Equity Contribution" shall have the meaning provided
in Section 5.09(a).

                  "Holdings Guaranteed Obligations" shall mean (i) the principal
and interest on each Note issued to each Lender, and all Loans made, under this
Agreement, all reimbursement obligations and Unpaid Drawings with respect to
Letters of Credit and all reimbursement obligations and Unreimbursed Payments
with respect to Bank Guaranties, 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 Borrowers (or either
of them) 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 and each other Credit
Document and the due performance and compliance by each Borrower with all the
terms, conditions and agreements contained in this Agreement and each other
Credit Document to which it is a party and (ii) 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 U.S. Borrower or any
of its Subsidiaries owing under any Interest Rate Protection Agreement or Other
Hedging Agreement entered into by the U.S. Borrower or any of its Subsidiaries
with any Lender or any affiliate thereof (even if such Lender subsequently
ceases to be a Lender under this Agreement for any reason) so long as such
Lender or affiliate 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.

                  "Holdings Guaranteed Party" shall mean each Borrower and each
Subsidiary of Holdings party to any Interest Rate Protection Agreement or Other
Hedging Agreement with any Secured Creditor.

                  "Holdings Guaranty" shall mean the guaranty of Holdings
pursuant to Section 14.

                  "HQ Lease Agreements" shall have the meaning provided such
term in the U.S. Security Agreement.

                                     -177-



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

                  "Individual Bermuda Borrower Dollar Facility RL Exposure" of
any Dollar Facility RL Lender shall mean, at any time, the sum of (I) the
aggregate principal amount of all Bermuda Borrower Dollar Facility Revolving
Loans made by such Dollar Facility RL Lender and then outstanding, (II) the sum
of such Dollar Facility RL Lender's L/C Participation Percentage in each then
outstanding Bermuda Borrower Dollar Facility Letter of Credit multiplied by the
sum of the Stated Amount of the respective Letter of Credit and any Unpaid
Drawings relating thereto and (III) such Dollar Facility RL Lender's Dollar
Facility RL Percentage multiplied by the aggregate principal amount of
outstanding Bermuda Borrower Dollar Facility Swingline Loans.

                  "Individual Dollar Facility RL Exposure" of any Dollar
Facility RL Lender shall mean, at any time, the sum of (I) the aggregate
principal amount of all Dollar Facility Revolving Loans made by such Dollar
Facility RL Lender and then outstanding, (II) such Dollar Facility RL Lender's
L/C Participation Percentage in each then outstanding Dollar Facility Letter of
Credit multiplied by the sum of the Stated Amount of the respective Dollar
Facility Letter of Credit and any Unpaid Drawings relating thereto and (III)
such Dollar Facility RL Lender's Dollar Facility RL Percentage multiplied by the
aggregate principal amount of all outstanding Dollar Facility Swingline Loans.

                  "Individual Multicurrency Facility RL Exposure" of any
Multicurrency Facility RL Lender shall mean, at any time, the sum of (I) the
aggregate principal amount of all Multicurrency Facility Revolving Loans made by
such Multicurrency Facility RL Lender and then outstanding (for this purpose,
using the Dollar Equivalent of the principal amount of all Euro Denominated
Revolving Loans made to the Bermuda Borrower and then outstanding), (II) such
Multicurrency Facility RL Lender's L/C Participation Percentage in each then
outstanding Multicurrency Facility Letter of Credit multiplied by the sum of the
Stated Amount of the

                                     -178-



respective Multicurrency Facility Letter of Credit and any Unpaid Drawings
relating thereto (for this purpose, using the Dollar Equivalent of any amounts
expressed in Euros), (III) such Multicurrency Facility RL Lender's Multicurrency
Facility RL Percentage multiplied by the aggregate principal amount of
outstanding Multicurrency Facility Swingline Loans (for this purpose, using the
Dollar Equivalent of the principal amount of Euro Denominated Swingline Loans
made to the Bermuda Borrower and then outstanding) and (IV) such Multicurrency
Facility RL Lender's B/G Participation Percentage in each then outstanding Bank
Guaranty multiplied by the sum of the Face Amount of the respective Bank
Guaranty and any Unreimbursed Payments relating thereto (for this purpose, using
the Dollar Equivalent of any amounts expressed in Euros).

                  "Individual RL Facility Exposures" of any Lender shall mean,
at any time, the sum of the Individual Multicurrency Facility RL Exposure and
the Individual Dollar Facility RL Exposure of such Lender at such time.

                  "Individual U.S. Borrower Dollar Facility RL Exposure" of any
Dollar Facility RL Lender shall mean, at any time, the sum of (I) the aggregate
principal amount of all U.S. Borrower Dollar Facility Revolving Loans made by
such Dollar Facility RL Lender and then outstanding, (II) the sum of such Dollar
Facility RL Lender's L/C Participation Percentage in each then outstanding U.S.
Borrower Dollar Facility Letter of Credit multiplied by the sum of the Stated
Amount of the respective U.S. Borrower Dollar Facility Letter of Credit and any
Unpaid Drawings relating thereto and (III) such Dollar Facility RL Lender's
Dollar Facility RL Percentage multiplied by the aggregate principal amount of
outstanding U.S. Borrower Dollar Facility Swingline Loans.

                  "Initial Borrowing Date" shall mean the date (which shall
occur on the Effective Date) upon which the initial Borrowing of Loans occurs.

                  "Initial Indebtedness to be Refinanced" shall mean and include
(i) Indebtedness under the Existing Credit Agreement, (ii) certain Indebtedness
of Foreign Subsidiaries under existing lines of credit, (iii) obligations of the
U.S. Borrower and its Subsidiaries under certain container leases, (iv)
reimbursement obligations with respect to certain existing letters of credit and
bank guaranties and (v) all other Indebtedness of Holdings and its Subsidiaries
outstanding immediately before the consummation of the Acquisition which is to
be repaid or refinanced on the Initial Borrowing Date, including any such
Indebtedness which is not permitted to remain outstanding after the Initial
Borrowing Date pursuant to Section 5.11 or 9.04. Without limiting the foregoing,
it understood and agreed that the aggregate amount of the "Initial Indebtedness
to be Refinanced" shall not exceed $100,000,000.

                  "Initial Refinancing" shall mean and include the various
refinancing transactions described in Sections 5.11(a) and (b).

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

                                     -179-



                  "Intercompany Distribution Transaction Documents" shall mean
all of the documents and instruments entered into in connection with the
Intercompany Distribution Transactions, in each case as the same may be amended,
modified or supplemented from time to time in accordance with the terms hereof
and thereof.

                  "Intercompany Distribution Transactions" shall have the
meaning provided in Section 5.09(b).

                  "Intercompany Note" shall mean a promissory note evidencing
intercompany loans made pursuant to Section 9.05(vi), in each case duly executed
and delivered substantially in the form of Exhibit L, with blanks completed in
conformity herewith (or such other form as may be approved by the Administrative
Agent or the Required Lenders).

                  "Intercompany Receivables Documents" shall have the meaning
provided in Section 5.14(e).

                  "Intercompany Scheduled Existing Indebtedness" shall have the
meaning provided in Section 7.21.

                  "Intercompany Subordination Agreement" shall have the meaning
provided in Section 5.14(d).

                  "Internally-Sourced Intercompany Distributions" shall have the
meaning provided in Section 5.09(a).

                  "Interest Determination Date" shall mean, with respect to any
Euro Rate Loan (other than a Swingline Loan), the second Business Day prior to
the commencement of any Interest Period relating to such Euro Rate Loan.

                  "Interest Period" with respect to any Euro Rate Loan, shall
mean the interest period applicable thereto, as determined pursuant to Section
1.09.

                  "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) DBAG and any RL Lender which
at the request of an Account Party and with the consent of the Administrative
Agent agrees, in such RL Lender's sole discretion, to become an Issuing Lender
for the purpose of issuing Letters of Credit pursuant to Section 2 and (ii) with
respect to the Existing Letters of Credit, the Lender designated as the issuer
thereof on Part A of Schedule XI shall be the Issuing Lender thereof.

                  "Joint Lead Arrangers" shall mean DBSI, Scotia Capital and
BAS, each in their capacities as Joint Lead Arrangers and Book Runners.

                  "Judgment Currency" shall have the meaning provided in Section
13.23(a).

                                     -180-



                  "Judgment Currency Conversion Date" shall have the meaning
provided in Section 13.23(a).

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

                  "L/C Participation Percentages" 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.

                  "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.

                  "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 (i) 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 pursuant to Section 1.13 and/or
13.04(b) and (ii) the Swingline Lender. 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 (including any Mandatory Borrowing), to fund its portion of any
unreimbursed payment under Section 2A.04 or (ii) a Lender having notified the
Administrative Agent and/or any Credit Agreement Party 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
2.01(a).

                  "Letter of Credit Fees" shall have the meaning provided in
Section 3.01(b).

                                     -181-



                  "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 (taking the Dollar Equivalent of any amounts owed in currencies
other than Dollars) in respect of all Letters of Credit at such time.

                  "Letter of Credit Request" shall have the meaning provided in
Section 2A.03(a).

                  "Leverage Ratio" shall mean, on any date of determination, the
ratio of (i) Consolidated 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, (i) Consolidated EBITDA for purposes of the Leverage
Ratio shall be determined on a Pro Forma Basis in accordance with clause (iv) of
the definition of Pro Forma Basis contained herein and (ii) Consolidated Debt
for purposes of the Leverage Ratio as it relates to the definition of
"Applicable Margin" shall be determined on a Pro Forma Basis in accordance with
clause (iii) of the definition of "Pro Forma Basis" contained herein.

                  "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 A Term Loan, each Tranche B
Term Loan, each Revolving Loan and each Swingline Loan.

                  "Loan-Sourced Intercompany Distributions" shall have the
meaning provided in Section 5.09(b).

                  "Local Law Pledge Agreement" shall have the meaning provided
in Section 5.15(c).

                  "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.

                  "Management Agreements" shall have the meaning provided in
Section 5.19.

                  "Mandatory Borrowing" shall mean and include any Mandatory
Multicurrency Facility RL Borrowing and any Mandatory Dollar Facility RL
Borrowing.

                  "Mandatory Cost" means the cost imputed to each Lender of
compliance with any reserve asset requirements of the European Central Bank.

                  "Mandatory Dollar Facility RL Borrowing" shall have the
meaning provided in Section 1.01(h).

                                     -182-



                  "Mandatory Multicurrency Facility RL Borrowing" shall have the
meaning provided in Section 1.01(g).

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

                  "Margin Stock" shall have the meaning provided in Regulation
U.

                  "Material Adverse Effect" shall mean (i) a material adverse
effect on the business, properties, assets, nature of assets, operations,
liabilities, condition (financial or otherwise) or prospects of (A) Holdings and
its Subsidiaries taken as a whole or (B) the 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 (i) the occurrence of an Excluded Event shall not constitute a "Material
Adverse Effect" for purposes of this definition and (ii) the impact of payments,
costs and expenses made and/or incurred in connection with claims or litigation
on the business, operations, financial condition and prospects of Holdings and
its Subsidiaries shall not be taken into account in making any determination of
"Material Adverse Effect," to the extent (and only to the extent) of the
reserves Holdings and its Subsidiaries shall have established to cover such
payments, costs and expenses on the Initial Borrowing Date, so long as such
reserves (including the aggregate amount thereof) shall have been identified to
the Agents in writing prior to the Initial Borrowing Date and all payments,
costs and expenses for which such reserves have been established have been fully
reflected in the Projections.

                  "Material Foreign Subsidiary" shall mean, at any time, any
Foreign Subsidiary of Holdings the net book value of the assets of which equals
or exceeds $5,000,000 at such time.

                  "Maturity Date" shall mean (i) with respect to Tranche A Term
Loans, the Tranche A Term Loan Maturity Date, (ii) with respect to Tranche B
Term Loans, the Tranche B Term Loan Maturity Date, (iii) with respect to
Revolving Loans, the Revolving Loan Maturity Date and (vi) with respect to
Swingline Loans, the Swingline Expiry Date.

                  "Maximum Permitted Consideration" shall mean, with respect to
any Permitted Acquisition, the sum (without duplication) of (i) the fair market
value of the Holdings Common Stock (based on the average closing trading price
of the Holdings Common Stock for the 20 trading days immediately prior to the
date of such Permitted Acquisition on the stock exchange on which Holdings
Common Stock is listed or, if Holdings Common Stock is not so listed, the good
faith determination of the senior management of Holdings) issued (or to be
issued) as consideration in connection with such Permitted Acquisition
(including, without limitation, Holdings Common Stock which may be required to
be issued as earnout consideration upon the achievement of certain future
performance goals of the respective Acquired Entity or Business), (ii) the
aggregate amount of all cash paid (or to be paid) by Holdings or any of its
Subsidiaries in connection with such Permitted Acquisition (including, without
limitation, payments of fees and costs and expenses in connection therewith) and
all contingent cash purchase price or other earnout obligations of Holdings and
its Subsidiaries incurred in connection therewith (as determined in good faith
by Holdings), (iii) the aggregate principal amount of all Indebtedness

                                     -183-



assumed, incurred and/or issued in connection with such Permitted Acquisition to
the extent permitted by Section 9.04 and (iv) the fair market value (determined
in good faith by senior management of Holdings) of all other consideration
payable in connection with such Permitted Acquisition.

                  "Maximum Swingline Amount" shall mean $15,000,000.

                  "Maximum Waivable Amount" shall have the meaning provided in
Section 4.02(k).

                  "Merger" shall mean shall mean the merger of Acquisition Corp.
with and into the U.S. Borrower (with the U.S. Borrower as the surviving
corporation of such merger) pursuant to, and in accordance with the terms of,
the Merger Agreement.

                  "Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of December 18, 2002, among Holdings, Acquisition Corp., David
H. Murdock and the U.S. Borrower (including the schedules and exhibits thereto),
as the same may be amended, modified and/or supplemented from time to time in
accordance with the terms hereof and thereof.

                  "Minimum Applicable Facing Fee" shall mean (x) in the case of
all Letters of Credit (other than Euro Denominated Letters of Credit), $500 and
(y) in the case of Euro Denominated Letters of Credit, (euro)500.

                  "Minimum Applicable Fronting Fee" shall mean (x) in the case
of all Bank Guaranties (other than Euro Denominated Bank Guaranties), $500 and
(y) in the case of Euro Denominated Bank Guaranties, (euro)500.

                  "Minimum Borrowing Amount" shall mean (i) in the case of
Dollar Denominated Loans (excluding Dollar Denominated Swingline Loans and
Dollar Denominated Revolving Loans maintained as Base Rate Loans), $5,000,000,
(ii) in the case of Revolving Loans maintained from time to time as Base Rate
Loans, $1,000,000, (iii) in the case of Euro Denominated Revolving Loans,
(euro)1,000,000, (iv) in the case of Dollar Denominated Swingline Loans,
$250,000 and (v) in the case of Euro Denominated Swingline Loans, (euro)250,000.

                  "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), together with any assignment of leases and
rents to be executed in connection therewith (as amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof).

                  "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.

                                     -184-



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

                  "Multicurrency Facility Letter of Credit" shall mean each
Letter of Credit (which may be denominated in Dollars or Euros) issued to the
Bermuda Borrower pursuant to Section 2A.01 and designated as such by the Bermuda
Borrower in the respective Letter of Credit Request.

                  "Multicurrency Facility Letter of Credit Outstandings" shall
mean, at any time, the sum of (i) the aggregate Stated Amount of all outstanding
Multicurrency Facility Letters of Credit and (ii) the aggregate amount of all
Unpaid Drawings (taking the Dollar Equivalent of all amounts payable in Euros)
in respect of all Multicurrency Facility Letters of Credit.

                  "Multicurrency Facility RL Lender" shall mean each Lender
which has a Multicurrency Facility Revolving Loan Commitment (without giving
effect to any termination of the Total Multicurrency Facility Revolving Loan
Commitment if any Multicurrency Facility Swingline Loans, Multicurrency Facility
Letter of Credit Outstandings or Bank Guaranty Outstandings remain outstanding)
or which has any outstanding Multicurrency Facility Revolving Loans (or an L/C
Participation Percentage in any then outstanding Multicurrency Facility Letter
of Credit Outstandings or a B/G Participation Percentage in any then outstanding
Bank Guaranty Outstandings).

                  "Multicurrency Facility RL Percentage" of any Multicurrency
Facility RL Lender at any time shall be that percentage which is equal to a
fraction (expressed as a percentage) the numerator of which is the Multicurrency
Facility Revolving Loan Commitment of such Multicurrency Facility RL Lender at
such time and the denominator of which is the Total Multicurrency Facility
Revolving Loan Commitment at such time, provided that if any such determination
is to be made after the Total Multicurrency Facility Revolving Loan Commitment
(and the related Multicurrency Facility Revolving Loan Commitments of the
Lenders) has (or have) terminated, the determination of such percentages shall
be made immediately before giving effect to such termination.

                  "Multicurrency Facility Revolving Loan" shall have the meaning
provided in Section 1.01(c).

                  "Multicurrency Facility Revolving Loan Commitment" shall mean,
for each Lender, the amount set forth opposite such Lender's name on Schedule I
hereto directly below the column entitled "Multicurrency Facility Revolving Loan
Commitment", as same may be (x) reduced from time to time and/or terminated
pursuant to Section 3.02, 3.03, 4.02 and/or 10, 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).

                  "Multicurrency Facility Swingline Loan" shall have the meaning
provided in Section 1.01(e).

                                     -185-



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

                  "Murdock" shall mean (i) David H. Murdock, individually, and
as trustee for the David H. Murdock Living Trust and (ii) the David H. Murdock
Living Trust, dated as of May 28, 1986, as amended.

                  "Net Cash Proceeds" shall mean for any event requiring a
reduction of the Total Revolving Loan Commitment and/or repayment of Term Loans
pursuant to Section 3.03 or 4.02, as the case may be, 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) which is secured by the
respective assets which were sold or otherwise disposed of, and (iv) the
estimated net marginal increase in income taxes which will be payable by
Holdings' consolidated group or any Subsidiary of Holdings with respect to the
Fiscal Year in which the sale or other disposition occurs as a result of such
sale or other disposition; provided, however, that such gross proceeds shall not
include any portion of such gross cash proceeds which Holdings determines in
good faith should be reserved for post-closing adjustments (to the extent
Holdings delivers to the Lenders a certificate signed by its chief financial
officer or treasurer, controller or chief accounting officer as to such
determination), it being understood and agreed that on the day that all such
post-closing adjustments have been determined (which shall not be later than six
months following the date of the respective asset sale), the amount (if any) by
which the reserved amount in respect of such sale or disposition exceeds the
actual post-closing adjustments payable by Holdings or any of its Subsidiaries
shall constitute Net Sale Proceeds on such date received by Holdings and/or any
of its Subsidiaries from such sale or other disposition.

                  "New Exchange Senior Notes" shall mean New Senior Notes which
are substantially identical securities to the New Senior Notes issued on or
prior to the Initial Borrowing Date, which New Exchange Senior Notes shall be
issued pursuant to a registered exchange offer or

                                     -186-



private exchange offer for the New Senior Notes and pursuant to the New Senior
Notes Indenture. In no event will the issuance of any New Exchange Senior Notes
increase the aggregate principal amount of New Senior Notes then outstanding or
otherwise result in an increase in an interest rate applicable to the New Senior
Notes.

                  "New Senior Notes" shall mean the U.S. Borrower's 8-7/8%
Senior Notes due 2011, issued pursuant to the New Senior Notes Indenture, as in
effect on the Initial Borrowing Date and as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
As used herein, the term "New Senior Notes" shall include any New Exchange
Senior Notes issued pursuant to the New Senior Notes Indenture in exchange for
theretofore outstanding New Senior Notes, as contemplated by the Offering
Memorandum, dated March 17, 2003, and the definition of New Exchange Senior
Notes.

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

                  "New Senior Notes Indenture" shall mean the Indenture, dated
as of March 28, 2003, 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
Initial Borrowing Date and as the same may be amended, modified or supplemented
from time to time in accordance with the terms hereof and thereof.

                  "Non-Defaulting Lender" shall mean each Lender other than a
Defaulting Lender.

                  "Non-Guarantor Subsidiaries" shall mean (i) on the Initial
Borrowing Date, each Subsidiary of Holdings listed on Part A of Schedule XV and
(ii) after the Initial Borrowing 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 Holdings 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 A Term Note, each Tranche B
Term Note, each Multicurrency Facility Revolving Note, the Multicurrency
Facility Swingline Note, each U.S. Borrower Dollar Facility Revolving Note, each
Bermuda Borrower Dollar Facility Revolving Note, the U.S. Borrower Dollar
Facility Swingline Note and the Bermuda Borrower Dollar Facility Swingline Note.

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

                                     -187-



                  "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 31 West 52nd Street, New York, New York 10019 or such other
office as the Administrative Agent may designate to Holdings and the Lenders
from time to time.

                  "Obligation Currency" shall have the meaning provided in
Section 13.23(a).

                  "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.

                  "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.

                  "Overnight Euro Rate" on any date shall mean the offered
quotation to first-class banks in the Euro-Zone interbank market by the
Swingline Lender for Euro overnight deposits of amounts in immediately available
funds comparable to the outstanding principal amount of the Euro Denominated
Swingline Loan of the Swingline Lender as of 11:00 A.M. (Brussels time) on such
date; provided, that in the event the Administrative Agent has made any
determination pursuant to Section 1.10(a)(i) in respect of Euro Denominated
Swingline Loans, or in the circumstances described in clause (i) to the proviso
to Section 1.10(b) in respect of Euro Denominated Swingline Loans, the Overnight
Euro Rate determined pursuant to this definition shall instead be the rate
determined by the Swingline Lender as the all-in-cost of funds for the Swingline
Lender to fund such Euro Denominated Swingline Loan.

                  "Payment Office" shall mean the office of the Administrative
Agent located at 31 West 52nd Street, New York, New York 10019 or such other
office as the Administrative Agent may hereafter designate in writing to
Holdings 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(vi).

                  "Permitted Acquisition" shall mean the acquisition by the U.S.
Borrower or any of its Wholly-Owned Subsidiaries of assets constituting a
business, division or product line of any Person, not already a Subsidiary of
the U.S. Borrower or any of its Wholly-Owned Subsidiaries, or of 100% of the
capital stock or other Equity Interests of any such Person, which Person shall,
as a result of such acquisition, become a Wholly-Owned Subsidiary of the U.S.
Borrower or such Wholly-Owned Subsidiary, provided that (A) the consideration
paid by the U.S. Borrower or such Wholly-Owned Subsidiary consists solely of
cash (including proceeds of Revolving Loans), the issuance of Holdings Common
Stock, the issuance of Qualified Preferred Stock, the incurrence of Indebtedness
otherwise permitted pursuant to Section 9.04 and the assumption/acquisition of
any Permitted Acquired Debt relating to such business, division,

                                     -188-



product line or Person which is permitted to remain outstanding in accordance
with the requirements of Section 9.04, (B) in the case of the acquisition of
100% of the capital stock or other Equity Interests of any Acquired Entity or
Business, such Acquired Entity or Business shall own no capital stock or other
Equity Interests of any other Person unless either (x) the Acquired Entity or
Business owns 100% of the capital stock or other Equity Interests of such other
Person or (y) if the Acquired Entity or Business owns capital stock or Equity
Interests in any other Person which is a Non-Wholly Owned Subsidiary of the
Acquired Entity or Business, (1) the Acquired Entity or Business shall not have
been created or established in contemplation of, or for purposes of, the
respective Permitted Acquisition, (2) such Non-Wholly Owned Subsidiary of the
Acquired Entity or Business shall have been a Non-Wholly Owned Subsidiary of the
Acquired Entity or Business prior to the date of the respective Permitted
Acquisition and not created or established in contemplation thereof and (3) the
Acquired Entity or Business and/or its Wholly-Owned Subsidiaries own 80% of the
consolidated assets of such Person and its Subsidiaries, (C) the Acquired Entity
or Business shall be a Permitted Business and (D) all applicable requirements of
Sections 8.11, 8.15 and 9.02 applicable to Permitted Acquisitions are satisfied.
Notwithstanding anything to the contrary contained in the immediately preceding
sentence, an acquisition which does not otherwise meet the requirements set
forth above in the definition of "Permitted Acquisition" shall constitute a
Permitted Acquisition if, and to the extent, the Required Lenders agree in
writing that such acquisition shall constitute a Permitted Acquisition for
purposes of this Agreement.

                  "Permitted Business" shall mean any business which (i) is the
same, similar, ancillary or reasonably related to the business in which Holdings
or any of its Subsidiaries is engaged on the Effective Date or (ii) is conducted
by an Acquired Entity or Business acquired pursuant to a Permitted Acquisition
and which does not qualify as a "Permitted Business" pursuant to preceding
clause (i), so long as (x) such business represents an immaterial portion of the
businesses acquired pursuant to such Permitted Acquisition and (y) such business
is sold or 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, (ii) mature no
later than the date by which Loans are required to be repaid with the balance of
the Net Sale Proceeds of such Contemplated Asset Sale as contemplated by Section
8.22 (and in no event later than December 31, 2005) and (iii) 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

                                     -189-



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

                  "Permitted Shareholder Litigation" shall mean shareholder
litigation subject to a settlement agreement that has been preliminarily
approved by the court with jurisdiction over such litigation, so long as (i) the
amount and terms of such settlement are as set forth in that certain memorandum
of understanding, dated as of December 18, 2002, (ii) the Agents are satisfied
in their sole discretion with the size of any class which "opts-out" of such
settlement and (iii) no material objections or appeals have been filed with
respect to such settlement or its approval.

                  "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) Holdings or a
Subsidiary of Holdings or an ERISA Affiliate, and each such plan for the five
year period immediately following the latest date on which Holdings,

                                     -190-



or a Subsidiary of Holdings 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.

                  "Post-Closing Period" shall have the meaning provided in
Section 8.15(a).

                  "Post-Closing Refinancing" shall mean, collectively, (i) the
application by the trustee under the Existing 2003 Senior Notes Indenture of
funds deposited in escrow with it on the Initial Borrowing Date to prepay in
full all outstanding Existing 2003 Senior Notes (and accrued and unpaid interest
thereon) in accordance with the requirements of the Existing 2003 Senior Notes
Indenture and (ii) the application by the trustee under the Existing 2005 Senior
Notes Indenture of funds deposited in escrow with it on the Initial Borrowing
Date to prepay in full all outstanding Existing 2005 Senior Notes, all accrued
but unpaid interest thereon (other than accrued but unpaid interest thereon to
be paid by the U.S. Borrower within two Business Days following the Initial
Borrowing Date) and a "make-whole" premium, all in accordance with the
requirements of the Existing 2005 Senior Notes Indenture.

                  "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 New Senior Notes Indenture (as in effect (and as each component
definition used therein is in effect) on the date hereof, without giving effect
to any termination thereof).

                  "Pro Forma Basis" shall mean, in connection with any
calculation of compliance with any financial covenant or financial term, the
calculation thereof after giving effect on a pro forma basis to (x) any
Permitted Acquisition or Significant Asset Sale then being consummated as well
as any other Permitted Acquisition or Significant Asset Sale consummated after
the first day of the relevant Test Period or Calculation Period, as the case may
be, and on or prior to the date of the respective Permitted Acquisition or
Significant Asset Sale, as the case may be, then being effected, (y) the
incurrence or assumption of any Indebtedness that is incurred or assumed

                                     -191-



in connection with, or to finance, one or more Permitted Acquisitions and (z)
the permanent repayment of any Indebtedness in connection with any Significant
Asset Sale; provided that, for purposes of calculations pursuant to Section
8.15, such calculations shall also give effect on a pro forma basis to (a) the
incurrence of any Indebtedness (other than revolving Indebtedness, except to the
extent same is incurred to refinance other outstanding Indebtedness or to
finance a Permitted Acquisition) after the first day of the relevant Calculation
Period as if such Indebtedness had been incurred (and the proceeds thereof
applied) on the first day of the relevant Calculation Period and (b) the
permanent repayment of any Indebtedness (other than revolving Indebtedness)
after the first day of the relevant Calculation Period as if such Indebtedness
had been retired or repaid on the first day of the relevant Calculation Period,
with the following rules to apply in connection therewith:

                  (i)      for purposes of Section 8.15 only, all Indebtedness
         (x) (other than revolving Indebtedness, except to the extent same is
         incurred to refinance other outstanding Indebtedness or to finance
         Permitted Acquisitions) incurred or issued after the first day of the
         relevant Calculation Period (whether incurred to finance a Permitted
         Acquisition, to refinance Indebtedness or otherwise) shall be deemed to
         have been incurred or issued (and the proceeds thereof applied) on the
         first day of the respective Calculation Period and remain outstanding
         through the date of determination (and thereafter in the case of
         projections pursuant to Section 8.15) and (y) (other than revolving
         Indebtedness) permanently retired or redeemed after the first day of
         the relevant Calculation Period shall be deemed to have been retired or
         redeemed on the first day of the respective Calculation Period and
         remain retired through the date of determination (and thereafter in the
         case of projections pursuant to Section 8.15);

                  (ii)     for purposes of Section 8.15 only, all Indebtedness
         assumed to be outstanding pursuant to preceding clause (i) shall be
         deemed to have borne interest at (x) the rate applicable thereto, in
         the case of fixed rate indebtedness or (y) the rates which would have
         been applicable thereto during the respective period when same was
         deemed outstanding, in the case of floating rate Indebtedness (although
         interest expense with respect to any Indebtedness for periods while
         same was actually outstanding during the respective period shall be
         calculated using the actual rates applicable thereto while same was
         actually outstanding); provided that all Indebtedness (whether actually
         outstanding or deemed outstanding) bearing interest at a floating rate
         of interest shall be tested on the basis of the rates applicable at the
         time the determination is made pursuant to said provisions;

                  (iii)    for determinations of the Leverage Ratio for purposes
         of determining the Applicable Margins, Consolidated Debt shall be the
         actual amount thereof as of the last day of the respective Calculation
         Period or Test Period, as the case may be; provided that, (x) to the
         extent any Permitted Acquisition is consummated after the last day of
         the respective Calculation Period or Test Period and on or prior to the
         date of delivery of the Quarterly Pricing Certificate referenced in the
         definition of "Applicable Margin", all Indebtedness incurred or assumed
         in connection with one or more Permitted Acquisitions consummated after
         the last day of the respective Calculation Period or Test Period, as
         the case may be, shall be added to Consolidated Debt and shall be
         deemed to have been outstanding on the last day of the respective
         Calculation Period or Test Period, as the case

                                     -192-



         may be, and (y) to the extent any Significant Asset Sale is consummated
         after the last day of the respective Calculation Period or Test Period
         and on or prior to the date of delivery of the Quarterly Pricing
         Certificate referenced in the definition of "Applicable Margin", all
         Indebtedness permanently repaid or retired in connection with one or
         more Significant Asset Sales consummated after the last day of the
         respective Calculation Period or Test Period, as the case may be, shall
         be deducted from Consolidated Debt and shall be deemed not to have been
         outstanding on the last day of the respective Calculation Period or
         Test Period, as the case may be;

                  (iv)     in making any determination of Consolidated EBITDA on
         a Pro Forma Basis, pro forma effect shall be given to any Permitted
         Acquisition or Significant Asset Sale effected during the respective
         Calculation Period or Test Period (or thereafter to the extent provided
         in the definition of Applicable Margin, for determinations of the
         Applicable Margins, or as provided in Section 8.15, for determinations
         pursuant to Section 8.15 only) as if same had occurred on the first day
         of the respective Calculation Period or Test Period, as the case may
         be, taking into account, in the case of any Permitted Acquisition,
         factually supportable and identifiable cost savings and expenses which
         would otherwise be accounted for as an adjustment pursuant to Article
         11 of Regulation S-X under the Securities Act, as if such cost savings
         or expenses were realized on the first day of the respective period.

                  "Pro Forma Financial Statements" shall have the meaning
provided in Section 5.21(a).

                  "Projections" shall have the meaning provided in Section
5.21(b).

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

                  "Qualified Jurisdictions" shall mean and include the United
States, Bermuda and each other jurisdiction identified on Schedule XX hereto, in
each case including any states, provinces or other similar local units therein.
Furthermore, from time to time after the Initial Borrowing Date, Holdings may
request (by written notice to, and following consultation with, the
Administrative Agent) that one or more additional jurisdictions be added to the
list of Qualified Jurisdictions. In such event, such jurisdictions shall be
added to (and thereafter form part of) the list of Qualified Jurisdictions so
long as, in each case, the respective jurisdiction to be added is a jurisdiction
in which the U.S. Borrower and/or any of its Subsidiaries conducts business on
the Effective Date or is otherwise reasonably satisfactory to the Administrative
Agent and so long as Holdings 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 (unlimited in amount and otherwise containing provisions
reasonably consistent with the provisions of the Foreign Subsidiaries Guaranty
executed and delivered on the Initial Borrowing Date and applicable to a
Qualified Non-U.S. Obligor on such date), the Intercompany Subordination
Agreement and such Security Documents as may be satisfactory to the Collateral
Agent (generally consistent with the Security Documents

                                     -193-



executed and delivered by Qualified Non-U.S. Obligors (determined without regard
to the proviso to the definition thereof contained herein) on the Initial
Borrowing Date) and that, in accordance with the laws of the respective
jurisdiction, 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 (in each case subject to such customary exceptions (not
inconsistent with the requirements set forth above) as are satisfactory to the
Administrative Agent). The parties hereto further agree that, in the discretion
of the Administrative Agent, as a condition to the addition of any jurisdiction
to the list of Qualified Jurisdictions, the Administrative Agent may (but shall
not be required to) request the consent of the Required Lenders to such addition
and, in such event, the Administrative Agent shall be entitled to wait for such
consent before adding the respective jurisdiction to the list of Qualified
Jurisdictions.

                  "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 Holdings 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 and 8.11 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 8.19(c), 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 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 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) during the 120 day period following the Initial Borrowing Date, any
Foreign Subsidiary of the Bermuda Partnership organized under the laws of
Argentina, the Bahamas, Barbados, Belgium, Brazil, British Virgin Islands,
Canary Islands, China, Greece, Guatemala, Malta, Mauritius, Mexico, Netherlands,
Panama, Peru, Singapore, South Africa, South Korea, Sweden, the United Kingdom
and Venezuela 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 (I) during such period each such Foreign
Subsidiary is making reasonable efforts to cause to be taken all such actions
required to be taken pursuant to the definition of Qualified Jurisdiction to
cause such Foreign Subsidiary to become a "Qualified Non-U.S. Obligor" and (II)
such Foreign Subsidiary continues to operate during such period in the ordinary
course of business and consistent with its past practices, (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

                                     -194-



than Sections 8.19(c) and 9.01(c) for which it is understood such Persons shall
not constitute "Qualified Non-U.S. Obligors"), (v) during the 180 day period
following the Initial Borrowing Date, each Foreign Subsidiary of the Bermuda
Partnership referred to in preceding clause (iii) of this proviso shall be
deemed to be a Qualified Non-U.S. Obligor for purposes of Sections 8.19(c) and
9.01(c) (and only said Section), so long as at all times during such period such
Foreign Subsidiary complies with the requirements described in subclause (II)
appearing in preceding clause (iii) of this proviso, (vi) each Foreign
Subsidiary of the U.S. Borrower which is not required to execute and deliver
Security Documents on the Initial Borrowing Date as a result of a post-closing
extension of such requirement granted to such Foreign Subsidiary pursuant to
Section 13.19 shall be deemed to be a Qualified Non-U.S. Obligor for all
purposes of this Agreement during the period from the Initial Borrowing Date
through the date of the required execution and delivery of such Security
Documents pursuant to Section 13.19, so long as such Foreign Subsidiary
otherwise meets the requirements of a "Qualified Non-U.S. Obligor" set forth
above and (vii) any Qualified Non-U.S. Obligor (including any deemed as such
pursuant to preceding clauses (i), (ii), (iii), (iv), (v) and (vi)) shall cease
to constitute same at such time, if any, as such Person ceases to be a
Wholly-Owned Subsidiary of Holdings.

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

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

                  "Qualified U.S. Obligors" shall mean and include Holdings and
each other U.S. Credit Party which is a Wholly-Owned Subsidiary of Holdings,
provided that any Qualified U.S. Obligor that is (or was) a Subsidiary of
Holdings 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 Holdings.

                                     -195-



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

                  "Quarterly Pricing Certificate" shall have the meaning
provided in the definition of Applicable Margin.

                  "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 Holdings 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 Holdings or any of its Subsidiaries, (ii) by
reason of any condemnation, taking, seizing or similar event with respect to any
properties or assets of Holdings or any of its Subsidiaries and (iii) under any
policy of insurance required to be maintained under Section 8.03.

                  "Refinancing" shall mean and include the Initial Refinancing
and the Post-Closing Refinancing.

                  "Refinancing Documents" shall mean all of the agreements,
documents and instruments executed or delivered in connection with the
Refinancing.

                  "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.

                  "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.

                  "Replaced Lender" shall have the meaning provided in Section
1.13.

                  "Replacement Lender" shall have the meaning provided in
Section 1.13.

                                     -196-



                  "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(j).

                  "Required Lenders" shall mean Non-Defaulting Lenders, the sum
of whose outstanding principal of Term Loans (or, if prior to the occurrence of
the Credit Events on the Initial Borrowing Date, whose Tranche A Term Loan
Commitments and Tranche B Term Loan Commitments) and Revolving Loan Commitments
(or after the termination thereof, outstanding Individual RL Facility Exposures)
as of any date of determination represent greater than 50% of the sum of all
outstanding principal of Term Loans (or, if prior to the occurrence of the
Credit Events on the Initial Borrowing Date, the sum of all Tranche A Term Loan
Commitments and Tranche B Term Loan Commitments) of Non-Defaulting Lenders at
such time and the sum of all Revolving Loan Commitments of all Non-Defaulting
Lenders at such time (or, after the termination thereof, the sum of the then
total Individual RL Facility Exposures of all Non-Defaulting Lenders at such
time).

                  "Restricted Subsidiary" of any Person shall mean any
Subsidiary (as defined in the New Senior Notes Indenture as in effect on the
Initial Borrowing Date) 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 (i) on each Excess Cash Payment Date so long
as any repayment required pursuant to Section 4.02(g) has been made, by an
amount equal to Excess Cash Flow for the immediately preceding Excess Cash Flow
Payment Period multiplied by a percentage equal to 100% minus the Applicable
Prepayment Percentage, and (B) reduced (i) on each Excess Cash Payment Date
where Excess Cash Flow for the immediately preceding Excess Cash Flow Payment
Period is a negative number, by such amount, and (ii) at the time of any
voluntary prepayment of Term Loans pursuant to Section 4.01 made (and notified
to the Administrative Agent as being made) to reduce the asset sale requirements
pursuant to clause (iii)(I) of the second proviso appearing in Section 8.22, by
the principal amount of the Term Loans so repaid (it being understood that the
Retained Excess Cash Flow Amount may be reduced to an amount below zero after
giving effect to the reductions enumerated in clause (B) above).

                  "Returns" shall have the meaning provided in Section 7.20.

                  "Revolving Loan Commitment" shall mean, for each RL Lender,
its Multicurrency Facility Revolving Loan Commitment (if any) and its Dollar
Facility Revolving Loan Commitment (if any).

                  "Revolving Loan Maturity Date" shall mean March 28, 2008.

                  "RL Commitment Commission" shall have the meaning provided in
Section 3.01(a).

                                     -197-



                  "RL Lender" shall mean each Multicurrency Facility RL Lender
and each Dollar Facility RL Lender.

                  "RL Percentage" of any RL Lender at any time shall be that
percentage which is equal to a fraction (expressed as a percentage) the
numerator of which is the Revolving Loan Commitment of such RL Lender at such
time and the denominator of which is the Total Revolving Loan Commitment at such
time, provided that if any such determination is to be made after the Total
Revolving Loan Commitment (and the related Revolving Loan Commitments of the RL
Lenders) has terminated, the determination of such percentages shall be made
immediately before giving effect to such termination.

                  "S&P" shall mean Standard & Poor's Ratings Services, a
division of McGraw Hill, Inc.

                  "Saba" shall mean Saba Trading AB, a Swedish company.

                  "Saba Share Option Agreement" shall have the meaning provided
in Section 9.05(xiv).

                  "Sale-Leaseback Transaction" shall mean the sale and leaseback
of the corporate aircraft named "Global Express".

                  "Sale-Leaseback Transaction Documents" shall mean all
documents and agreements delivered in connection with the Sale-Leaseback
Transaction, 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.

                  "Scheduled Existing Indebtedness" shall mean Third Party
Scheduled Existing Indebtedness and Intercompany Scheduled Existing
Indebtedness.

                  "Scheduled Repayment" shall mean any Tranche A Term Loan
Scheduled Repayment and/or any Tranche B Term Loan Scheduled Repayment, as
applicable.

                  "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.

                  "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.

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

                                     -198-



                  "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 Document" 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 Officer" shall mean (i) senior executive management of
Holdings and the U.S. Borrower, (ii) the general counsel of Holdings and the
U.S. Borrower and (iii) the division presidents of Holdings and its
Subsidiaries.

                  "SG" shall mean Societe Generale, in its individual capacity,
and any successor corporation thereto by merger, consolidation or otherwise.

                  "Shareholder Subordinated Note" shall mean an unsecured junior
subordinated note issued by Holdings (and not guaranteed or supported in any way
by either Borrower or any of their respective Subsidiaries) in the form of
Exhibit M, as the same may be amended, modified and/or supplemented from time to
time in accordance with the terms hereof and thereof.

                  "Shareholders' Agreements" shall have the meaning provided in
Section 5.19.

                  "Sharing Event" shall mean (i) the occurrence of any Event of
Default with respect to any Credit Agreement Party pursuant to Section 10.05,
(ii) the declaration of the termination of any Revolving 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.

                  "Special Colombian Put Notes" shall have the meaning provided
in Section 8.24.

                  "Special Reserve Account" shall have the meaning provided in
Section 1.14(d).

                                     -199-



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

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

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

                  "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, except as such term is used in Section 2A.02 and except as provided in the
definition of "Euro L/C Stated Amount", the "Stated Amount" of each Euro
Denominated Letter of Credit shall be, on any date of calculation, the Dollar
Equivalent of the maximum amount available to be drawn in Euros thereunder
(determined without regard to whether any conditions to drawing could then be
met but after giving effect to all previous drawings made thereunder).

                  "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
Sections 8.11, 8.12 and/or 9.17.

                  "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 "66-2/3%."

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

                  "Swingline Lender" shall mean DBAG, or any Person serving as a
successor Administrative Agent hereunder, in its capacity as a lender of
Swingline Loans.

                                     -200-



                  "Swingline Loans" shall have the meaning provided in Section
1.01(f).

                  "Syndication Date" shall mean the earlier of (i) the 90th day
following the Initial Borrowing Date and (ii) the date upon which the Agents
determine (and notify Holdings and the Lenders) that the primary syndication
(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 in
accordance with 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; provided that for purposes
of this Agreement, the term "Synthetic Lease" shall not include the leases in
existence on the Initial Borrowing Date with respect to the vessels named "Dole
Chile" and "Dole Colombia".

                  "Tax Allocation Agreements" shall have the meaning provided in
Section 5.19.

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

                  "Term Loans" shall mean and include Tranche A Term Loans and
Tranche B Term Loans.

                  "Test Period" shall mean (i) for purposes of any determination
of compliance with Sections 9.08, 9.09 or 9.11 prior to the first anniversary of
the Initial Borrowing Date, the period commencing on the first day of the 2nd
Fiscal Quarter of Fiscal Year 2003 and ending on the last day of the Fiscal
Quarter then last ended (taken as one accounting period) and (ii) for all other
purposes, each period of four consecutive Fiscal Quarters then last ended, in
each case taken as one accounting period; provided that in the case of any
determination of the Leverage Ratio or the Bank Debt Leverage Ratio pursuant to
this Agreement prior to the first anniversary of the Initial Borrowing Date,
such period shall be a one-year period ending on the last day of the Fiscal
Quarter last ended, with any calculations of Consolidated EBITDA used in
calculating the Leverage Ratio or the Bank Debt Leverage Ratio to be made on a
pro forma basis in accordance with, and to the extent provided in, the
immediately succeeding sentence. To the extent the respective Test Period (i)
includes the 2nd Fiscal Quarter of Fiscal Year 2002, Consolidated EBITDA for
such fiscal quarter shall be deemed to be $139,500,000, (ii) includes the 3rd
Fiscal Quarter of Fiscal Year 2002, Consolidated EBITDA for such fiscal quarter
shall be deemed to be $91,200,000, (iii) includes the 4th Fiscal Quarter of
Fiscal Year 2002, Consolidated EBITDA for such fiscal quarter shall be deemed to
be $70,400,000 and (iv) includes the 1st Fiscal Quarter of Fiscal Year 2003,
Consolidated EBITDA shall be deemed to be $101,600,000 (provided that once the
financial results for such Fiscal Quarter are made available and reported as
provided in Section 8.01(b), Consolidated EBITDA for such Fiscal Quarter shall
be recalculated in accordance with the requirements of the definition of
"Consolidated EBITDA" and, thereupon, be restated for purposes of this clause
(iv)); provided, however, that any additional adjustments required by the
definition of Pro Forma Basis for occurrences after the Initial Borrowing Date
shall also be made.

                                     -201-



                  "Third Party Scheduled Existing Indebtedness" shall have the
meaning provided in Section 7.21.

                  "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.

                  "Total Commitment" shall mean, at any time, the sum of the
Total Tranche A Term Loan Commitment, the Total Tranche B Term Loan Commitment
and the Total Revolving Loan Commitment.

                  "Total Dollar Facility Revolving Loan Commitment" shall mean,
at any time, the sum of the Dollar Facility Revolving Loan Commitments of each
of the Lenders with such a Commitment at such time.

                  "Total Multicurrency Facility Revolving Loan Commitment" shall
mean, at any time, the sum of the Multicurrency Facility Revolving Loan
Commitments of each of the Lenders with such a Commitment at such time.

                  "Total Revolving Loan Commitment" shall mean, at any time, the
sum of the Total Dollar Facility Revolving Loan Commitment and the Total
Multicurrency Facility Revolving Loan Commitment, in each case in effect at such
time.

                  "Total Tranche A Term Loan Commitment" shall mean, at any
time, the sum of the Tranche A Term Loan Commitments of each of the Lenders with
such a Commitment at such time.

                  "Total Tranche B Term Loan Commitment" shall mean, at any
time, the sum of the Tranche B Term Loan Commitments of each of the Lenders with
such a Commitment at such time.

                  "Total Unutilized Dollar Facility Revolving Loan Commitment"
shall mean, at any time, an amount equal to the remainder of (x) the Total
Dollar Facility Revolving Loan Commitment as in effect at such time less (y) the
aggregate principal amount of all Dollar Facility Revolving Loans outstanding at
such time less (z) the aggregate amount of all Dollar Facility Letter of Credit
Outstandings at such time.

                  "Total Unutilized Multicurrency Facility Revolving Loan
Commitment" shall mean, at any time, an amount equal to the remainder of (x) the
Total Multicurrency Facility Revolving Loan Commitment as in effect at such time
less (y) the Aggregate Multicurrency Facility RL Exposure at such time; provided
that for purposes of this definition, "Aggregate Multicurrency Facility RL
Exposure" shall be determined as provided in the definition thereof but for such
purposes excluding the obligations described in clause (iii) of said definition.

                  "Total Unutilized Revolving Loan Commitment" shall mean, at
any time, an amount equal to the remainder of (x) the Total Revolving Loan
Commitment as in effect at such

                                     -202-



time less (y) the sum of the Aggregate Multicurrency Facility RL Exposure at
such time and the Aggregate Dollar Facility RL 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 hereunder, with there being eight separate Tranches
(i.e., Tranche A Term Loans, Tranche B Term Loans, Multicurrency Facility
Revolving Loans, Multicurrency Facility Swingline Loans, U.S. Borrower Dollar
Facility Revolving Loans, Bermuda Borrower Dollar Facility Revolving Loans, U.S.
Borrower Dollar Facility Swingline Loans and Bermuda Borrower Dollar Facility
Swingline Loans); provided that for purposes of the definition of "Supermajority
Lenders", "Majority Lenders" and Section 13.12(a), there shall be deemed to be
four separate Tranches (i.e., Tranche A Term Loans, Tranche B Term Loans,
Multicurrency Facility Revolving Loans and Dollar Facility Revolving Loans).

                  "Tranche A Term Loan" shall have the meaning provided in
Section 1.01(a).

                  "Tranche A 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 A Term Loan Commitment", as the same
may be terminated pursuant to Sections 3.03 and/or 10.

                  "Tranche A Term Loan Maturity Date" shall mean March 28, 2008.

                  "Tranche A Term Loan Scheduled Repayment" shall have the
meaning provided in Section 4.02(b)(i).

                  "Tranche A Term Note" shall have the meaning provided in
Section 1.05(a).

                  "Tranche B Term Loan" shall mean have the meaning provided in
Section 1.01(b).

                  "Tranche B 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 Term Loan Commitment", as the same
may be terminated pursuant to Sections 3.03 and/or 10.

                  "Tranche B Term Loan Maturity Date" shall mean September 28,
2008.

                  "Tranche B Term Loan Scheduled Repayment" shall have the
meaning provided in Section 4.02(b)(ii).

                  "Tranche B Term Note" shall have the meaning provided in
Section 1.05(a).

                  "Transaction" shall mean, collectively, (i) the consummation
of the Acquisition and the Foreign Asset Transfer, (ii) the consummation of the
Common Equity Financing, (iii) the issuance of the New Senior Notes, (iv) the
execution and delivery of the Existing Senior Notes Indenture Supplement as
contemplated by Section 5.10, (v) the consummation of the

                                     -203-



Refinancing, (vi) the consummation of the Sale-Leaseback Transaction, (vii) the
consummation of the Intercompany Distribution Transactions, (viii) the entering
into of the Credit Documents and the incurrence of all Loans and the issuance of
all Letters of Credit and Bank Guaranties on the Initial Borrowing Date, and
(ix) the payment of fees and expenses in connection with the foregoing.

                  "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, a
Eurodollar Loan, a Euro Denominated Revolving Loan or a Euro Denominated
Swingline 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.

                  "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 Holdings and its Subsidiaries other than, so long as Saba
remains a Non-Wholly Owned Subsidiary, cash and Cash Equivalents owned or held
by Saba and its Subsidiaries.

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

                  "Unutilized Dollar Facility Revolving Loan Commitment" with
respect to any Dollar Facility RL Lender, at any time, shall mean such Dollar
Facility RL Lender's Dollar Facility Revolving Loan Commitment at such time, if
any, less the sum of (i) the aggregate outstanding principal amount of Dollar
Facility Revolving Loans made by such Dollar Facility RL Lender and then
outstanding and (ii) the sum of such Dollar Facility RL Lender's L/C
Participation Percentage of the Stated Amount of each Dollar Facility Letter of
Credit and any Unpaid Drawings relating thereto.

                  "Unutilized Multicurrency Facility Revolving Loan Commitment"
with respect to any Multicurrency Facility RL Lender, at any time, shall mean
such Multicurrency Facility RL Lender's Multicurrency Facility Revolving Loan
Commitment at such time, if any, less the sum

                                     -204-



of (i) the aggregate outstanding principal amount of Multicurrency Facility
Revolving Loans (taking the Dollar Equivalent of any such Loans denominated in
Euros) made by such Multicurrency Facility RL Lender and then outstanding, (ii)
the sum of such Multicurrency Facility RL Lender's L/C Participation Percentage
of the Stated Amount of each Multicurrency Facility Letter of Credit and any
Unpaid Drawings (taking the Dollar Equivalent of any amounts expressed in Euros)
relating thereto and (iii) the sum of such Multicurrency Facility RL Lender's
B/G Participation Percentage of the Face Amount of each Bank Guaranty and any
Unreimbursed Payment (taking the Dollar Equivalent of any amounts expressed in
Euros) relating thereto.

                  "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 Dollar Facility Letter of Credit" shall mean
each Dollar Facility Letter of Credit (which must be denominated in Dollars)
issued for the account of the U.S. Borrower pursuant to Section 2A.01.

                  "U.S. Borrower Dollar Facility Revolving Loan" shall have the
meaning provided in Section 1.01(d).

                  "U.S. Borrower Dollar Facility Revolving Note" shall have the
meaning provided in Section 1.05(a).

                  "U.S. Borrower Dollar Facility Swingline Loan" shall have the
meaning provided in Section 1.01(f).

                  "U.S. Borrower Dollar Facility Swingline Note" shall have the
meaning provided in Section 1.05(a)

                  "U.S. Borrower Guaranteed Obligations" shall mean (i) the
principal and interest on each Tranche B Term Note, each Multicurrency Facility
Revolving Note, the Multicurrency Facility Swingline Note, each Bermuda Borrower
Dollar Facility Revolving Note and each Bermuda Borrower Dollar Facility
Swingline Note issued by the Bermuda Borrower to each Lender, and each Tranche B
Term Loan, each Multicurrency Facility Revolving Loan, each Multicurrency
Facility Swingline Loan, each Bermuda Borrower Dollar Facility Revolving Loan
and each Bermuda Borrower Dollar Facility Swingline 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 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 (ii) all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would

                                     -205-



become due) and liabilities of the Bermuda Borrower or any other Subsidiary of
the U.S. 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 Lender or any affiliate thereof (even
if such Lender subsequently ceases to be a Lender under this Agreement for any
reason) so long as such Lender or affiliate 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.

                  "U.S. Borrower Guaranteed Party" shall mean 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.

                  "U.S. Borrower's Guaranty" shall mean the guaranty of the U.S.
Borrower pursuant to Section 15.

                  "U.S. Credit Party" shall mean Holdings, the U.S. Borrower and
each U.S. Subsidiary Guarantor.

                  "U.S. Dole Group" shall mean Holdings, 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;
provided that determinations in accordance with U.S. GAAP for purposes of
Applicable Margins and Sections 4.02, 8.15 and 9, including defined terms as
used therein, and for all purposes of determining the Leverage Ratio and the
Bank Debt Leverage Ratio, are subject (to the extent provided therein) to
Section 13.07(a).

                  "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 have the meaning provided in
Section 5.15(a).

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

                  "U.S. Security Agreement" shall have the meaning provided in
Section 5.16.

                  "U.S. Security Documents" shall mean and include the U.S.
Security Agreement, the U.S. Pledge Agreement, each Mortgage covering a U.S.
Mortgage Property and each

                                     -206-



Additional Security Document covering assets of a U.S. Credit Party situated in
the United States.

                  "U.S. Subsidiaries Guaranty" shall have the meaning provided
in Section 5.14(a) and shall include any counterpart thereof and any other
substantially identical guaranty executed and delivered by any Subsidiary of the
U.S. Borrower pursuant to Section 8.11, 8.12 or 9.17.

                  "U.S. Subsidiary Guarantor" shall mean (i) each Wholly-Owned
Domestic Subsidiary of Holdings as of the Initial Borrowing Date (other than (x)
the U.S. Borrower and (y) the Excluded Domestic Subsidiary) and (ii) each other
Wholly-Owned Domestic Subsidiary of the U.S. Borrower created, established or
acquired after the Initial Borrowing 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.

                  "Waivable Repayment" shall have the meaning provided in
Section 4.02(k).

                  "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, the term "Administrative Agent" shall mean DBAG in
its capacities as Administrative Agent and as Collateral Agent hereunder and
pursuant to the Security Documents), (y) Scotia Capital and BAS as
Co-Syndication Agents for such Lender, and (z) Fleet and SG as Co-Documentation
Agents for such Lender, each to act as specified herein and in the other Credit
Documents, and each such

                                     -207-



Lender hereby irrevocably authorizes the Administrative Agent, each
Co-Syndication Agents 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, such Co-Syndication Agent or such
Co-Documentation Agent, 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 Co-Syndication Agents, the
Co-Documentation Agents and the Lenders, and neither Holdings 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, each Co-Syndication Agent and each
Co-Documentation Agent shall act solely as agent for the Lenders, and none of
the Administrative Agent, the Co-Syndication Agents or the Co-Documentation
Agents assumes (and shall not be deemed to have assumed) any obligation or
relationship of agency or trust with or for Holdings 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

                                     -208-



(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, judgments, suits, costs, expenses and
disbursements (including reasonable attorneys' and consultants' fees and
disbursements) incurred by, imposed on or assessed against any of them as a
result of, or arising out of, or in any way related to, or by reason of, 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, each of the Joint Lead Arrangers
is named as such for recognition purposes only, and in their respective
capacities as such shall have no powers, duties, responsibilities or liabilities
with respect to this Agreement or the other Credit Documents or the transactions
contemplated hereby and thereby; it being understood and agreed that the Joint
Lead Arrangers 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, none of the Joint Lead Arrangers
shall, solely by reason of this Agreement or any other Credit Documents, have
any fiduciary relationship in respect of any Lender or any other Person.

                  12.03 Certain Rights of the Agents. The Agents shall have the
right 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 Holdings or either

                                     -209-



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. The Administrative Agent shall take
such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; provided that, unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders (as determined by the
Administrative Agent in its sole discretion).

                  12.06 Nonreliance on Agents and Other Lenders. Independently
and without reliance upon any Agent, each 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 Holdings and
its Subsidiaries in connection with the making and the continuance of the Loans
and the taking or not taking of any action in connection herewith and, except as
expressly provided in this Agreement, no Agent shall have any duty or
responsibility, either initially or on a continuing basis, to provide any Lender
or the holder of any Note with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at
any time or times thereafter. No Agent or their respective affiliates nor any of
their respective officers, directors, agents or employees shall be responsible
to any Lender 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 Holdings 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 or 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 Credit Agreement
Parties, 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), 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, 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

                                     -210-



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. 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 any Credit Party or any Affiliate
thereof) as if they were not performing the duties specified herein, and may
accept fees and other consideration from any Credit Party or any Affiliate of
any Credit Party for services in connection with this Agreement and otherwise
without having to account for the same to the Lenders.

                  12.09 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 Business Days' prior
written notice to the Lenders and, unless a Default or an Event of Default under
Section 10.05 then exists, Holdings. Any such resignation by an Agent hereunder
shall also constitute its resignation (if applicable) as an Issuing Lender, Bank
Guaranty Issuer and Swingline Lender, in which case the resigning Agent (x)
shall not be required to issue any further Letters of Credit or Bank Guaranties
or make any additional Swingline Loans hereunder and (y) shall maintain all of
its rights as Issuing Lender, Bank Guarantor Issuer or Swingline Lender, as the
case may be, with respect to any Letter of Credit or Bank Guaranty issued by it,
or Swingline Loans made by it, prior to the date of such resignation. Such
resignation shall take effect upon the appointment of a successor Administrative
Agent pursuant to clauses (b) and (c) below or as otherwise provided below.

                  (b)      Upon any such notice of resignation by the
Administrative Agent, the Required Lenders shall appoint a successor
Administrative Agent hereunder and/or under the other Credit Documents who shall
be a commercial bank or trust company acceptable to

                                     -211-



Holdings, which acceptance shall not be unreasonably withheld or delayed
(provided that Holdings' 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 Business Day period, the Administrative Agent,
with the consent of Holdings (which consent shall not be unreasonably withheld
or delayed, provided that Holdings' 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 Business Day after the
date such notice of resignation was given by the Administrative Agent, the
Administrative Agent's resignation shall become effective and the Required
Lenders shall thereafter perform all the duties of the Administrative Agent
hereunder and/or under any other Credit Document until such time, if any, as the
Lenders appoint a successor Administrative Agent as provided above.

                  (e)      Either Co-Syndication Agent may resign from the
performance of all its functions and duties hereunder and/or under the other
Credit Documents at any time by giving five Business Days' prior written notice
to the Lenders. Such resignation shall take effect at the end of such five
Business Day period.

                  (f)      Either Co-Documentation Agent may resign from the
performance of all its functions and duties hereunder and/or under the other
Credit Documents at any time by giving five Business Days' prior written notice
to the Lenders. Such resignation shall take effect at the end of such five
Business Day period.

                  (g)      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 for the
benefit of the Lenders and the other Secured Creditors. 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, and
the exercise by the Required Lenders of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Lenders. The Collateral Agent is hereby
authorized on behalf of all of the Lenders, without the necessity of any notice
to or further consent from any Lender, from time to time prior to an Event of
Default, to take any action with respect to any Collateral or Security Documents
which may be necessary to perfect and maintain perfected the security interest
in and liens upon the Collateral granted pursuant to the Security Documents.

                                     -212-



                  (b)      The Lenders hereby authorize the Collateral Agent, at
its option and in its discretion, to release any Lien granted to or held by the
Collateral Agent upon any Collateral (i) upon termination of the Commitments and
payment and satisfaction 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 Holdings 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) or (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.

                  (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 Agreement Party or any of its Subsidiaries 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).

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

                  12.13 Special Appointment of Collateral Agent. (a) Without
prejudice to the generality of Clause 12.11 (Collateral Matters):

                  (i)      Each Lender hereby appoints, on the terms hereof, and
each Hedging Creditor (as defined in the U.S. Security Agreement) by their
acceptance of the benefits of the German Security (as defined below) and by
notice in writing to the Collateral Agent to that effect hereby appoints, on the
terms hereof, the Collateral Agent as trustee (Treuhaender), agent and
administrator for the purpose of holding on trust (Treuhand) accepting,
administering and enforcing the German Security for and on behalf of the Lenders
and the other Secured Creditors.

                                     -213-



                  (ii)     The Collateral Agent accepts its appointment as a
trustee (Treuhaender), agent and administrator of the German Security on the
terms and subject to the conditions set out in this Agreement.

                  (iii)    The Secured Creditors 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; and

                  (b)      The Collateral Agent shall:

                  (i)      hold and administer any German Security which is
security assigned or otherwise transferred
(Sicherungsubereignung/Sicherungsabtretung) under German law under a
non-accessory security right (nicht akzessorische Sicherheit) to it as a trustee
(Treuhaender) for the benefit of the Secured Creditors; and

                  (ii)     administer any German Security which is pledged under
German law (Verpfaendung) or otherwise transferred in accordance with German law
to any of the Secured Creditors under an accessory security right (akzessorische
Sicherheit),

where "German Security" means the assets the subject of a security document
which is governed by German Law. Each Secured Creditor hereby authorizes the
Collateral Agent to accept, as its representative (Stellvertreter), any German
Security created in favor of such Secured Creditor.

                  (c)      Furthermore, each Secured Creditor hereby authorizes
(bevollmaechtigt) 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 as 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, amend and/or execute new
and different documents securing the German Security. The Collateral Agent is
released from the restrictions arising under Clause 181 of the German Civil Code
(Buergerliches Gesetzbuch) (restrictions on self-dealing).

                  12.14 Special Provisions Relating to Canadian Security
Documents. 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 shall, 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, be the holder of an irrevocable power of
attorney (fonde 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 favour 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 to be executed by Dole
Canada (the "Canadian Security Agreement")) hereby irrevocably constitutes, to
the extent necessary, the Collateral Agent as the holder of an irrevocable power
of attorney (fonde de pouvoir) (within the meaning of Article 2692 of the Civil
Code of Quebec) in order to hold security granted by

                                     -214-



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 (fonde 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.

                  SECTION 13. Miscellaneous.

                  13.01 Payment of Expenses, etc. The Credit Agreement Parties
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 and the Collateral Agent (including, without limitation,
the reasonable fees and disbursements of White & Case LLP and local and foreign
counsel) in connection with the negotiation, preparation, execution and delivery
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 Credit
Agreement Parties 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 White & Case LLP, Conyers Dill & Pearman, a single law firm engaged
by any Agent (other than DBAB) to review credit documentation (to the extent the
fees and expenses of such single law firm do not exceed $50,000) and such other
local and foreign counsel as may be engaged by the Administrative Agent to
address issues arising in connection with the Transaction 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 and each of the Lenders in connection
with the enforcement of the Credit Documents and the documents and instruments
referred to therein (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 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 and each of the
Lenders); (iii) pay and hold each of the Agents, the Collateral Agent, each
Issuing Lender, each Bank Guaranty Issuer 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 and each of

                                     -215-



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
or such Lender) to pay such taxes; and (iv) indemnify each Agent, the Collateral
Agent, each Issuing Lender, each Bank Guaranty Issuer and each Lender, their
respective officers, directors, employees, representatives, trustees and agents
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 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, 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 or Bank Guaranty or the proceeds of any Loans hereunder or the
Transaction or the consummation of 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
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), 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 or any Lender set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the Credit
Agreement Parties 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 Holdings or any of
its

                                     -216-



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, such Bank Guaranty Issuer, such Lender or the Collateral
Agent (including, without limitation, by branches and agencies of such Agent,
such Issuing Lender, such Bank Guaranty Issuer, such Lender or the Collateral
Agent wherever located) to or for the credit or the account of Holdings or any
of its Subsidiaries against and on account of the Obligations and liabilities of
Holdings 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 any Swingline Loans,
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, or Swingline Loans made, 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 is 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
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,

                                     -217-



telex, facsimile or cable communication) and mailed, telegraphed, telexed,
telecopied, cabled or delivered: if to any Credit Agreement Party, 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 Credit Agreement Party 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 Holdings 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
Holdings and its Subsidiaries to confirm in writing any telephonic notice
permitted to be given hereunder, any Agent, the Swingline Lender (in the case of
a Borrowing of Swingline Loans), 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, the Swingline Lender, such Issuing Lender or such Bank
Guaranty Issuer in good faith to be from an Authorized Officer. In each such
case, Holdings and each of the Borrowers hereby waive the right to dispute such
Agent's, the Swingline Lender'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 Credit
Agreement Party 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 shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document except to
the extent such amendment or waiver would (i) extend the final scheduled
maturity of any Loan, Note, or Letter of Credit or Bank Guaranty (unless such
Letter of Credit or Bank Guaranty is not extended beyond the Revolving Loan
Maturity Date) in which such participant is participating, or reduce the rate or
extend the time of payment of interest or Fees thereon (except in connection
with a waiver of applicability of any post-default increase in interest rates)
or reduce the principal amount thereof, 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 Credit Agreement Party of any of its

                                     -218-



rights and obligations under this Agreement, (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 or (iv) amend, modify or waive any provision of
Section 8.22 or the Capital Call Agreement in any manner adverse to the interest
of any Lender. 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.

                  (b)      Notwithstanding the foregoing, any Lender (or any
Lender together with one or more other Lenders) may (x) assign all or a portion
of its Revolving Loan Commitment (and related outstanding Obligations
hereunder), and/or its outstanding Term Loans 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 $1,000,000 in the aggregate for the assigning Lender or assigning
Lenders, of such Revolving Loan Commitments (and related outstanding Obligations
hereunder) and/or outstanding principal amount of Term Loans hereunder 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 such fund or by an Affiliate of such investment advisor,
as a single Eligible Transferee), each of which assignees shall become a party
to this Agreement as a Lender by execution of an Assignment and Assumption
Agreement, provided that (i) at such time Schedule I shall be deemed modified to
reflect the Revolving Loan Commitments and/or outstanding Term Loans, as the
case may be, of such new Lender and of the existing Lenders, (ii) upon surrender
of the old Notes, 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 Revolving Loan Commitments and/or 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) the consent of the
Swingline Lender and each Issuing Lender shall be required in connection with
any assignment of Revolving Loan Commitments pursuant to this Section 13.04(b)
(which consent shall not be unreasonably withheld or delayed), (v) the consent
of each Bank Guaranty Issuer shall be required in connection with any assignment
of Multicurrency Revolving Loan Commitments pursuant to this Section 13.04(b)
(which consent shall not be unreasonably withheld or delayed) and (vi) the
Administrative Agent shall receive at the time of each such assignment, from the
assigning or assignee Lender, the payment of a non-refundable assignment fee of
$3,500 and, 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/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

                                     -219-



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 Revolving Loan Commitment, if any
Revolving Loans, 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 outstanding Revolving Loans of the respective RL
Lender and its participation in Letters of Credit and Bank guaranties and its
obligation to make Mandatory Borrowings, although any such assignment effected
after the termination of the Total Revolving Loan Commitment shall not release
the assigning RL Lender from its obligations as a participant with respect to
outstanding Letters of Credit or Bank Guaranties or to fund its share of any
Mandatory Borrowing (although the respective assignee may agree, as between
itself and the respective assigning RL Lender, that it shall be responsible for
such amounts).

                  (c)      Nothing in this Agreement shall prevent or prohibit
any Lender from pledging its Loans and Notes hereunder to a Federal Reserve Bank
in support of borrowings made by such Lender from such Federal Reserve Bank and,
with prior notification to the Administrative Agent (but without the consent of
the Administrative Agent or any Credit Agreement Party), 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 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.

                  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.

                                     -220-



                  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 (including, without limitation, as provided
in Section 4.02(k)), 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) except as otherwise
specifically provided herein, all computations determining the Applicable
Margins, Excess Cash Flow, the Leverage Ratio, the Bank Debt Leverage Ratio and
compliance with Sections 4, 8.15 and 9, including in each case definitions used
therein, shall, in each case, utilize United States accounting principles and
policies in effect at the time of the preparation of, and in conformity with
those used to prepare, the historical consolidated audited financial statements
of the U.S. Borrower delivered to the Lenders pursuant to Section 7.10(b) for
the fiscal year of the U.S. Borrower ended December 28, 2002, (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 (excluding Sections 9.08, 9.09, 9.10, 9.11 and 9.13), 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

                                     -221-



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, RL Commitment
Commission and other 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, RL Commitment
Commission 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 Credit Agreement
Party hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts. Each
Credit Agreement 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 Credit Agreement 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 this Agreement. Each Credit Agreement Party hereby
further irrevocably waives any claim that any such courts lack jurisdiction over
such Credit Agreement Party, and agrees not to plead or claim, in any legal
action or proceeding with respect to this Agreement or any other Credit Document
brought in any of the aforesaid courts, that any such court lacks jurisdiction
over such Credit Agreement Party. Each Credit Agreement Party 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 Credit Agreement Party, 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 Credit Agreement 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 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 Credit Agreement Party in any other jurisdiction.

                                     -222-



                  (b)      EACH CREDIT AGREEMENT 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 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 Credit Agreement Party and the Administrative Agent.

                  13.10 Effectiveness. This Agreement shall become effective on
the date (the "Effective Date") on which Holdings, each of the Borrowers, each
Agent, the Collateral Agent and each of the Lenders shall have signed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered the same (including by way of facsimile transmission) to the
Administrative Agent at the Notice Office or at the office of the Administrative
Agents' counsel. The Administrative Agent will give Holdings and each Lender
prompt written notice of the occurrence of the Effective Date.

                  13.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.

                  13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor
any other Credit Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing signed by the respective Credit Parties party 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 Revolving Loan 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 extensions of credit of the type provided to the
Tranche A Term Loans,

                                     -223-



Tranche B Term Loans and the Revolving Loan Commitments on the 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 Revolving Loan Commitments are included on the
Effective Date), (v) consent to the assignment or transfer by any Credit
Agreement Party of any of its rights and obligations under this Agreement, (vi)
amend, modify or waive any provision of Section 8.22 or the Capital Call
Agreement in any manner adverse to the interests of any Lender or (vii) release
the Holdings Guaranty or the U.S. Borrower's Guaranty; provided further, that no
such change, waiver, discharge or termination shall (p) amend, modify or waive
any condition precedent set forth in Section 6A or 6B with respect to the making
of Revolving Loans, Swingline Loans or the issuance of Letters of Credit or Bank
Guaranties, without the written consent of the Majority Lenders holding
Revolving Loan 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 thereby, amend, modify or waive any
provision of Section 2A or alter its rights or obligations with respect to
Letters of Credit, (s) without the consent of each Bank Guaranty Issuer affected
thereby, amend, modify or waive any provision of Section 2B or alter its rights
or obligations with respect to Bank Guaranties, (t) without the consent of the
Swingline Lender, alter its rights or obligations with respect to Swingline
Loans, (u) 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, (v)
without the consent of the Collateral Agent, amend, modify or waive any
provision relating to the rights or obligations of the Collateral Agent, (w)
except in cases where additional extensions of term loans and/or revolving loans
are being afforded substantially the same treatment afforded to the Term Loans
and Revolving Loans pursuant to this Agreement as originally in effect, 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(b)) (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), (x) 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 Effective Date), (y)
except in cases where additional extensions of term loans and/or revolving loans
are being afforded substantially the same treatment afforded to the Term Loans
and Revolving Loans pursuant to Section 1.14 (as originally in effect) 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

                                     -224-


the consent of the Majority Lenders of each Tranche adversely affected thereby,
amend, modify or waive any provisions of Section 1.14 or (z) without the consent
of the Supermajority Lenders of the respective Tranche, reduce the amount of or
extend the date of, any Tranche A Term Loan Scheduled Repayment or Tranche B
Term Loan Scheduled Repayment (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 (z)), 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 Effective Date). Notwithstanding anything to
the contrary contained above in this Section 13.12(a), the Administrative Agent
and/or the Collateral Agent shall be permitted to (i) enter into such amendments
and/or modifications to the Foreign Subsidiaries Guaranty and the Foreign
Security Documents entered into by any Columbian Subsidiary Guarantor as may be
required to give effect to the purposes of Section 8.24 and (ii) 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.

                  (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 Holdings 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 Holdings 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/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 Tranche of Revolving Loan
Commitment of such non-consenting Lender (if such Lender's consent is required
as a result of such Tranche of its Revolving 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 3.02(b) 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
Holdings 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

                                     -225-



Lender's rights (and the withholding of any required consent by such Lender)
pursuant to the second proviso to Section 13.12(a).

                  13.13 Survival. All indemnities set forth herein including,
without limitation, in Sections 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 and the making
and repayment of the Loans and the other Obligations.

                  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 any
Credit Agreement Party (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 Holdings 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, and (e) 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.

                  (b)      Each Credit Agreement Party hereby acknowledges and
agrees that each Lender may share with any of its affiliates or its investment
advisors any information related to Holdings 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.

                  (c)      Each Credit Agreement Party 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 Credit Agreement Party or to any of its

                                     -226-



employees or agents, or other persons affiliated with or related to such Credit
Agreement Party (or, so far as such Credit Agreement Party is aware, to any
other person), as to the potential tax consequences of the Transaction.

                  (d)      Neither the Agents nor the Lenders provide
accounting, tax or legal advice. Notwithstanding any express or implied claims
of exclusivity or proprietary rights, each Credit Agreement Party, each Agent
and each Lender hereby agree and acknowledge that each Credit Agreement Party,
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 Transaction, and all materials
of any kind (including opinions or other tax analyses) that are provided to any
Credit Agreement Party, any Agent or any Lender relating to such tax treatment
and tax structure. In this regard, each Credit Agreement Party, each Agent and
each Lender acknowledge and agree that the disclosure of the tax treatment and
tax structure of the Transaction 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 Credit Agreement
Party, each Agent and each Lender that the Transaction is not a "confidential
transaction" as that phrase is used in Treasury Regulation Section
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 Credit Agreement Party,
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 Transaction.

                  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 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

                                     -227-



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
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 (in which event certified English translations thereof shall, upon the
request of the Administrative Agent, be provided by Holdings 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 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 Holdings and its Subsidiaries described on Part A of
Schedule XIV shall be completed in accordance with Part A of said Schedule XIV.

                  2.       UCC Filings; Filings with respect to Intellectual
Property; etc. (i) Holdings and its Subsidiaries were not required to have filed
(or cause to have filed) on or prior to the Initial Borrowing Date Financing
Statements (Form UCC-1) or any filings with the United States Patent and
Trademark Office or the United States Copyright Office necessary to perfect the
security interest purported to be created by the U.S. Security Agreement. Not
later than the 7th day after the Initial Borrowing Date, Holdings and its
Subsidiaries shall have filed (or cause to have filed) all of such Financing
Statements (Form UCC-1) and any filings with the United States Patent and
Trademark Office or the United States Copyright Office necessary to perfect the
security interest purported to be created by the U.S. Security Agreement.

                  3.       Actions by Various Foreign Subsidiaries Relating to
Security Documents. Holdings and its Subsidiaries shall be required to take the
actions specified in Part B of Schedule XIV as promptly as practicable, and in
any event within the time periods set forth in Part B of said Schedule XIV. The
provisions of Part B of said Schedule XIV shall be deemed incorporated by
reference herein as fully as if set forth herein in its entirety.

                  4.       Actions Relating to Foreign Asset Transfers. Holdings
and its Subsidiaries shall be required to take the actions specified in Part C
of Schedule XIV as promptly as practicable, and in any event within the time
periods set forth in Part C of said Schedule XIV

                                     -228-



(including, without limitation, the required update of Schedule XIII). The
provisions of Part C of said Schedule XIV shall be deemed incorporated by
reference herein as fully as if set forth herein in its entirety.

                  5.       Miscellaneous Actions By Various Subsidiaries of
Holdings. Holdings and its Subsidiaries shall be required to take the actions
specified in Part D of Schedule XIV as promptly as practicable, and in any event
within the time periods set forth in Part D of said Schedule XIV. The provisions
of Part D of said Schedule XIV 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 Initial
Borrowing Date the respective representation and warranty shall be required to
be true and correct in all material respects at the time the respective action
is taken (or was required to be taken) in accordance with the foregoing
provisions of this Section 13.19 and (y) all representations and warranties
relating to the Security Documents shall be required to be true immediately
after the actions required to be taken by this Section 13.19 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 Credit Agreement Party to each
of the Lenders that the actions required pursuant to this Section 13.19 will be,
or have been, taken within the relevant time periods referred to in this Section
13.19 and that, at such time, all representations and warranties contained in
this Credit Agreement and the other Credit Documents shall then be true and
correct without any modification pursuant to this Section 13.19. 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.

                  13.20 Special Provisions Regarding Pledges of Equity Interests
in, and Promissory Notes Owed by, Persons Not Organized in Qualified
Jurisdictions. 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 said 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

                                     -229-



preceding sentence, it is acknowledged that, as of the Initial Borrowing Date,
no actions have been required to be taken to perfect, under local law of the
jurisdiction of the Person who issued the respective promissory notes or whose
Equity Interests are pledged, under the Security Documents. The Credit Agreement
Parties hereby agree that, following any request by the Administrative Agent or
Required Lenders to do so, each Credit Agreement Party 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 13.20, all such actions shall be
taken in accordance with the provisions of this Section 13.20 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 13.20, 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 13.20 or pursuant to
Section 8.11.

                  13.21 Powers of Attorney; etc. Each of Holdings and 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 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 Holdings 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 13.21 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 Holdings or the U.S. Borrower.

                  13.22 Waiver of Sovereign Immunity. Each of the Credit
Agreement Parties, in respect of itself, its Subsidiaries, its process agents,
and its properties and revenues, hereby irrevocably agrees that, to the extent
that such Credit Agreement Party, 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 Credit Agreement Party 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 Credit
Agreement Party, for itself and on

                                     -230-



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 Credit Agreement Party further agrees that the waivers
set forth in this Section 13.22 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.

                  13.23 Judgment Currency. (a) The Credit Parties' obligations
hereunder and under the other Credit Documents to make payments in the
respective Applicable Currency (the "Obligation Currency") shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation Currency,
except to the extent that such tender or recovery results in the effective
receipt by the Administrative Agent, the Collateral Agent or the respective
Lender of the full amount of the Obligation Currency expressed to be payable to
the Administrative Agent, the Collateral 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 Euro Equivalent or the Dollar Equivalent thereof, as the
case may be, 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, each 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.

                  (c)      For purposes of determining the Dollar Equivalent or
the Euro Equivalent or any other rate of exchange for this Section, such amounts
shall include any premium and costs payable in connection with the purchase of
the Obligation Currency.

                  13.24 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 Lenders
and/or their affiliates, 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

                                     -231-



Party (but is otherwise subject to the provisions of Section 9.01(c)) and (iii)
the obligations secured pursuant to the Security Documents are not secured by
any Excluded Collateral.

                  SECTION 14. Holdings 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 Lenders or
any of their respective Affiliates to enter into Interest Rate Protection
Agreements or Other Hedging Agreements, and in recognition of the direct
benefits to be received by Holdings from the proceeds of the Loans, the issuance
of the Letters of Credit and Bank Guaranties and the entering into of Interest
Rate Protection Agreements or Other Hedging Agreements, Holdings hereby agrees
with the Lenders as follows: Holdings 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 the Holdings Guaranteed Obligations to the Guaranteed Creditors. If any
or all of the Holdings Guaranteed Obligations to the Guaranteed Creditors
becomes due and payable hereunder, Holdings 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 Holdings Guaranteed Obligations. This Holdings Guaranty is a guaranty
of payment and not of collection. This Holdings 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 Holdings Guaranteed
Obligations and any of the aforesaid payees repays all or part of said amount by
reason of (i) any judgment, decree or order of any court or administrative body
having jurisdiction over such payee or any of its property or (ii) any
settlement or compromise of any such claim effected by such payee with any such
claimant (including the Borrowers and any other Holdings Guaranteed Party), then
and in such event Holdings agrees that any such judgment, decree, order,
settlement or compromise shall be binding upon Holdings, notwithstanding any
revocation of this Holdings Guaranty or any other instrument evidencing any
liability of either Borrower or any other Holdings Guaranteed Party, and
Holdings 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, Holdings unconditionally and
irrevocably guarantees the payment of any and all of the Holdings Guaranteed
Obligations to the Guaranteed Creditors whether or not due or payable by either
Borrower or any other Holdings 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 Holdings hereunder
is exclusive and independent of any security for or other guaranty of the
Holdings Guaranteed Obligations whether executed by Holdings, any other
guarantor or by any other party, and the liability of Holdings hereunder is not
affected or impaired by (a) any direction as to application of payment by either
Borrower, any other Holdings 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 Holdings Guaranteed Obligations, or
(c) any payment on or in reduction of any

                                     -232-



such other guaranty or undertaking, or (d) any dissolution, termination or
increase, decrease or change in personnel by either Borrower or any other
Holdings Guaranteed Party, or (e) any payment made to the Guaranteed Creditors
on the Holdings Guaranteed Obligations which any such Guaranteed Creditor repays
to either Borrower or any other Holdings Guaranteed Party pursuant to court
order in any bankruptcy, reorganization, arrangement, moratorium or other debtor
relief proceeding, and Holdings 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 Holdings Guaranteed Obligations or of
any security therefor shall affect, impair or be a defense to this Holdings
Guaranty, and this Holdings Guaranty shall be primary, absolute and
unconditional notwithstanding the occurrence of any event or the existence of
any other circumstances which might constitute a legal or equitable discharge of
a surety or guarantor except payment in full in cash of the Holdings Guaranteed
Obligations. The obligations of Holdings hereunder are independent of the
obligations of either Borrower, any other Holdings Guaranteed Party, any other
guarantor or any other party and a separate action or actions may be brought and
prosecuted against Holdings whether or not action is brought against either
Borrower, any other Holdings Guaranteed Party, any other guarantor or any other
party and whether or not either Borrower, any other Holdings Guaranteed Party,
any other guarantor or any other party be joined in any such action or actions.
Holdings waives, to the full extent permitted by law, the benefit of any statute
of limitations affecting its liability hereunder or the enforcement thereof. Any
payment by a Borrower or any other Holdings Guaranteed Party or other
circumstance that operates to toll any statute of limitations as to such
Borrower or such other Holdings Guaranteed Party shall operate to toll the
statute of limitations as to Holdings.

                  14.05 Authorization. Holdings 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 Holdings 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 Holdings Guaranty made shall apply to the
         Holdings Guaranteed Obligations as so changed, extended, renewed,
         increased or altered;

                  (b)      take and hold security for the payment of the
         Holdings 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 Holdings 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 either Borrower, any other Holdings Guaranteed Party or others
         or otherwise act or refrain from acting;

                                     -233-



                  (d)      release or substitute any one or more endorsers,
         guarantors, either Borrower, any other Holdings Guaranteed Party or
         other obligors;

                  (e)      settle or compromise any of the Holdings 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 either Borrower or
         any other Holdings 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 either Borrower or any
         other Holdings Guaranteed Party to the Guaranteed Creditors regardless
         of what liability or liabilities of such Borrower or such other
         Holdings 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 Holdings from its liabilities under this Holdings
         Guaranty.

                  14.06 Reliance. It is not necessary for the Guaranteed
Creditors to inquire into the capacity or powers of either Borrower or any other
Holdings Guaranteed Party or the officers, directors, partners or agents acting
or purporting to act on their behalf, and any Holdings 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 either
Borrower or any other Holdings Guaranteed Party now or hereafter owing to
Holdings is hereby subordinated to the Holdings Guaranteed Obligations of such
Borrower or such other Holdings 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 Borrower or such other Holdings
Guaranteed Party to Holdings shall be collected, enforced and received by
Holdings 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
Holdings Guaranteed Obligations of such Borrower or such Holdings Guaranteed
Party to the Guaranteed Creditors, but without affecting or impairing in any
manner the liability of Holdings under the other provisions of this Holdings
Guaranty. Prior to the transfer by Holdings of any note or negotiable instrument
evidencing any of the indebtedness of either Borrower or any other Holdings
Guaranteed Party to Holdings, Holdings 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, Holdings hereby agrees with the
Guaranteed Creditors that it will not exercise any right of subrogation which it
may at

                                     -234-



any time otherwise have as a result of this Holdings Guaranty (whether
contractual, under Section 509 of the Bankruptcy Code or otherwise) until all
Holdings Guaranteed Obligations have been irrevocably paid in full in cash.

                  14.08 Waiver. (a) Holdings waives any right (except as shall
be required by applicable statute and cannot be waived) to require any
Guaranteed Creditor to (i) proceed against either Borrower, any other Holdings
Guaranteed Party, any other guarantor or any other party, (ii) proceed against
or exhaust any security held from either Borrower, any other Holdings Guaranteed
Party, any other guarantor or any other party or (iii) pursue any other remedy
in any Guaranteed Creditor's power whatsoever. Holdings waives any defense based
on or arising out of any defense of either Borrower, any other Holdings
Guaranteed Party, any other guarantor or any other party, other than payment in
full in cash of the Holdings Guaranteed Obligations, based on or arising out of
the disability of either Borrower, any other Holdings Guaranteed Party, any
other guarantor or any other party, or the unenforceability of the Holdings
Guaranteed Obligations or any part thereof from any cause, or the cessation from
any cause of the liability of either Borrower or any other Holdings Guaranteed
Party other than payment in full in cash of the Holdings 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 either Borrower, any other Holdings
Guaranteed Party or any other party, or any security, without affecting or
impairing in any way the liability of Holdings hereunder except to the extent
the Holdings Guaranteed Obligations have been paid in full in cash. Holdings
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 Holdings against either
Borrower, any other Holdings Guaranteed Party or any other party or any
security.

                  (b)      Holdings 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 Holdings Guaranty, and notices of the existence, creation or incurring
of new or additional Holdings Guaranteed Obligations. Holdings assumes all
responsibility for being and keeping itself informed of each Borrower's and each
other Holdings Guaranteed Party's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Holdings
Guaranteed Obligations and the nature, scope and extent of the risks which
Holdings assumes and incurs hereunder, and agrees that the Guaranteed Creditors
shall have no duty to advise Holdings of information known to them regarding
such circumstances or risks.

                  (c)      Until such time as the Holdings Guaranteed
Obligations have been paid in full in cash, Holdings hereby waives all rights of
subrogation which it may at any time otherwise have as a result of this Holdings
Guaranty (whether contractual, under Section 509 of the Bankruptcy Code, or
otherwise) to the claims of the Guaranteed Creditors against either Borrower,
any other Holdings Guaranteed Party or any other guarantor of the Holdings
Guaranteed Obligations and all contractual, statutory or common law rights of
reimbursement, contribution or indemnity from either Borrower, any other
Holdings Guaranteed Party or any other guarantor which it may at any time
otherwise have as a result of this Holdings Guaranty.

                                     -235-



                  (d)      Holdings hereby acknowledges and affirms that it
understands that to the extent the Holdings Guaranteed Obligations are secured
by Real Property located in California, Holdings 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 Holdings' or any
Guaranteed Creditor's right to proceed against either Borrower, any other
Holdings Guaranteed Party or any other guarantor of the Holdings Guaranteed
Obligations. In accordance with Section 2856 of the California Code of Civil
Procedure, Holdings hereby waives:

                  (i)      all rights of subrogation, reimbursement,
         indemnification, and contribution and any other rights and defenses
         that are or may become available to Holdings by reason of Sections 2787
         to 2855, inclusive, 2899 and 3433 of the California Code of Civil
         Procedure;

                  (ii)     all rights and defenses that Holdings may have
         because the Holdings Guaranteed Obligations are secured by Real
         Property located in California, meaning, among other things, that: (A)
         the Guaranteed Creditors may collect from Holdings without first
         foreclosing on any real or personal property collateral pledged by
         either Borrower or any other Credit Party, and (B) if the Guaranteed
         Creditors foreclose on any Real Property collateral pledged by either
         Borrower or any other Credit Party, (1) the amount of the Holdings
         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 Holdings even if the Guaranteed Creditors, by foreclosing
         on the Real Property collateral, have destroyed any right Holdings may
         have to collect from either Borrower or any other Holdings Guaranteed
         Party, it being understood that this is an unconditional and
         irrevocable waiver of any rights and defenses Holdings may have because
         the Holdings 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 Holdings Guaranteed Obligations, has destroyed Holdings' rights
         of subrogation and reimbursement against either Borrower or any other
         Holdings Guaranteed Party by the operation of Section 580d of the
         California Code of Civil Procedure or otherwise.

                  (e)      Holdings warrants and agrees that each of the waivers
set forth above is made with full knowledge of its significance and consequences
and that if any of such waivers are determined to be contrary to any applicable
law of public policy, such waivers shall be effective only to the maximum extent
permitted by law.

                  14.09 Payments. All payments made by Holdings pursuant to this
Section 14 shall be made in the respective Applicable Currency in which the
Holdings 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 Holdings

                                     -236-



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
13.23.

                  SECTION 15. U.S. Borrower's Guaranty.

                  15.01 The U.S. Borrower's Guaranty. In order to induce the
Lenders to enter into this Agreement and to extend credit hereunder and to
induce the Lenders or any of their respective Affiliates to enter into Interest
Rate Protection Agreements or Other Hedging Agreements, and in recognition of
the direct benefits to be received by the U.S. Borrower from the proceeds of the
Loans, the issuance of the Letters of Credit and Bank Guaranties and the
entering into of Interest Rate Protection Agreements or Other Hedging
Agreements, the U.S. Borrower hereby agrees with the Lenders as follows: the
U.S. 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 the U.S. Borrower
Guaranteed Obligations to the Guaranteed Creditors. If any or all of the U.S.
Borrower Guaranteed Obligations to the Guaranteed Creditors becomes due and
payable hereunder, the U.S. 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 U.S. Borrower Guaranteed Obligations. This U.S. Borrower's Guaranty
is a guaranty of payment and not of collection. This U.S. Borrower's 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 U.S. Borrower Guaranteed Obligations and any of the aforesaid payees repays
all or part of said amount by reason of (i) any judgment, decree or order of any
court or administrative body having jurisdiction over such payee or any of its
property or (ii) any settlement or compromise of any such claim effected by such
payee with any such claimant (including the Bermuda Borrower or any other U.S.
Borrower Guaranteed Party), then and in such event the U.S. Borrower agrees that
any such judgment, decree, order, settlement or compromise shall be binding upon
the U.S. Borrower, notwithstanding any revocation of this U.S. Borrower's
Guaranty or any other instrument evidencing any liability of the Bermuda
Borrower or any U.S. Borrower Guaranteed Party, and the U.S. 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.

                  15.02 Bankruptcy. Additionally, the U.S. Borrower
unconditionally and irrevocably, guarantees the payment of any and all of the
U.S. Borrower Guaranteed Obligations to the Guaranteed Creditors whether or not
due or payable by the Bermuda Borrower or any other U.S. Borrower 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.

                  15.03 Nature of Liability. The liability of the U.S. Borrower
hereunder is exclusive and independent of any security for or other guaranty of
the U.S. Borrower Guaranteed Obligations whether executed by the U.S. Borrower,
any other guarantor or by any other party, and the liability of the U.S.
Borrower hereunder is not affected or impaired by (a) any direction

                                     -237-



as to application of payment by the Bermuda Borrower, any other U.S. Borrower
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 U.S. Borrower Guaranteed Obligations, or (c) any payment on or in
reduction of any such other guaranty or undertaking, or (d) any dissolution,
termination or increase, decrease or change in personnel by the Bermuda Borrower
or any other U.S. Borrower Guaranteed Party or (e) any payment made to the
Guaranteed Creditors on the U.S. Borrower Guaranteed Obligations which any such
Guaranteed Creditor repays to the Bermuda Borrower or any other U.S. Borrower
Guaranteed Party pursuant to court order in any bankruptcy, reorganization,
arrangement, moratorium or other debtor relief proceeding, and the U.S. 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 15.05, or (g) the lack of validity or enforceability of any
Credit Document or any other instrument relating thereto.

                  15.04 Independent Obligation. No invalidity, irregularity or
unenforceability of all or any part of the U.S. Borrower Guaranteed Obligations
or of any security therefor shall affect, impair or be a defense to this U.S.
Borrower's Guaranty, and this U.S. Borrower's Guaranty shall be primary,
absolute and unconditional notwithstanding the occurrence of any event or the
existence of any other circumstances which might constitute a legal or equitable
discharge of a surety or guarantor except payment in full in cash of the U.S.
Borrower Guaranteed Obligations. The obligations of the U.S. Borrower hereunder
are independent of the obligations of the Bermuda Borrower, any other U.S.
Borrower Guaranteed Party, any other guarantor or any other party, and a
separate action or actions may be brought and prosecuted against the U.S.
Borrower whether or not action is brought against the Bermuda Borrower, any
other U.S. Borrower Guaranteed Party, any other guarantor or any other party and
whether or not the Bermuda Borrower, any other U.S. Borrower Guaranteed Party,
any other guarantor or any other party be joined in any such action or actions.
The U.S. Borrower waives, to the full extent permitted by law, the benefit of
any statute of limitations affecting its liability hereunder or the enforcement
thereof. Any payment by the Bermuda Borrower or any other U.S. Borrower
Guaranteed Party or other circumstance that operates to toll any statute of
limitations as to the Bermuda Borrower or such other U.S. Borrower Guaranteed
Party shall operate to toll the statute of limitations as to the U.S. Borrower.

                  15.05 Authorization. The U.S. 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 U.S. Borrower 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 U.S. Borrower's Guaranty made shall apply
         to the U.S. Borrower Guaranteed Obligations as so changed, extended,
         renewed, increased or altered;

                  (b)      take and hold security for the payment of the U.S.
         Borrower 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

                                     -238-



         mortgaged to secure, or howsoever securing, the U.S. Borrower
         Guaranteed Obligations or any liabilities (including any of those
         hereunder) incurred directly or indirectly in respect thereof or
         hereof, and/or any offset thereagainst;

                  (c)      exercise or refrain from exercising any rights
         against the Bermuda Borrower, any other U.S. Borrower Guaranteed Party
         or others or otherwise act or refrain from acting;

                  (d)      release or substitute any one or more endorsers,
         guarantors, the Bermuda Borrower, any other U.S. Borrower Guaranteed
         Party or other obligors;

                  (e)      settle or compromise any of the U.S. Borrower
         Guaranteed Obligations, any security therefor or any liability
         (including any of those hereunder) incurred directly or indirectly in
         respect thereof or hereof, and may subordinate the payment of all or
         any part thereof to the payment of any liability (whether due or not)
         of the Bermuda Borrower or any other U.S. Borrower 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 the Bermuda Borrower or any
         other U.S. Borrower Guaranteed Party to the Guaranteed Creditors
         regardless of what liability or liabilities of the Bermuda Borrower or
         such other U.S. Borrower 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 the U.S. Borrower from its liabilities under this U.S.
         Borrower's Guaranty.

                  15.06 Reliance. It is not necessary for the Guaranteed
Creditors to inquire into the capacity or powers of the Bermuda Borrower or any
other U.S. Borrower Guaranteed Party or the officers, directors, partners or
agents acting or purporting to act on its or their behalf, and any U.S. Borrower
Guaranteed Obligations made or created in reliance upon the professed exercise
of such powers shall be guaranteed hereunder.

                  15.07 Subordination. Any of the indebtedness of the Bermuda
Borrower or any other U.S. Borrower Guaranteed Party now or hereafter owing to
the U.S. Borrower is hereby subordinated to the U.S. Borrower Guaranteed
Obligations of the Bermuda Borrower or such other U.S. Borrower 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 the Bermuda
Borrower or such other U.S. Borrower Guaranteed Party to the U.S. Borrower shall
be collected, enforced and received by the U.S. Borrower for the benefit of the
Guaranteed Creditors and be paid over to the Administrative Agent on behalf of
the

                                     -239-



Guaranteed Creditors on account of the U.S. Borrower Guaranteed Obligations of
the Bermuda Borrower or such other U.S. Borrower Guaranteed Party to the
Guaranteed Creditors, but without affecting or impairing in any manner the
liability of the U.S. Borrower under the other provisions of this U.S.
Borrower's Guaranty. Prior to the transfer by the U.S. Borrower of any note or
negotiable instrument evidencing any of the indebtedness of the Bermuda Borrower
or any other U.S. Borrower Guaranteed Party to the U.S. Borrower, the U.S.
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, the U.S. 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 U.S. Borrower's Guaranty (whether contractual, under
Section 509 of the Bankruptcy Code or otherwise) until all U.S. Borrower
Guaranteed Obligations have been irrevocably paid in full in cash.

                  15.08 Waiver. (a) The U.S. 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 the Bermuda Borrower, any other U.S.
Borrower Guaranteed Party, any other guarantor or any other party, (ii) proceed
against or exhaust any security held from the Bermuda Borrower, any other U.S.
Borrower Guaranteed Party, any other guarantor or any other party or (iii)
pursue any other remedy in any Guaranteed Creditor's power whatsoever. The U.S.
Borrower waives any defense based on or arising out of any defense of the
Bermuda Borrower, any other U.S. Borrower Guaranteed Party, any other guarantor
or any other party, other than payment in full in cash of the U.S. Borrower
Guaranteed Obligations, based on or arising out of the disability of the Bermuda
Borrower, any other Guaranteed Party, any other guarantor or any other party, or
the unenforceability of the U.S. Borrower Guaranteed Obligations or any part
thereof from any cause, or the cessation from any cause of the liability of the
Bermuda Borrower or any other U.S. Borrower Guaranteed Party other than payment
in full in cash of the U.S. Borrower Guaranteed Obligations. The Guaranteed
Creditors may, at their election, foreclose on any security held by the
Administrative Agent, the Collateral Agent or any other Guaranteed Creditor by
one or more judicial or nonjudicial sales, whether or not every aspect of any
such sale is commercially reasonable (to the extent such sale is permitted by
applicable law), or exercise any other right or remedy the Guaranteed Creditors
may have against the Bermuda Borrower, any other U.S. Borrower Guaranteed Party
or any other party, or any security, without affecting or impairing in any way
the liability of the U.S. Borrower hereunder except to the extent the U.S.
Borrower Guaranteed Obligations have been paid in full in cash. The U.S.
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 the U.S. Borrower
against the Bermuda Borrower, any other U.S. Borrower Guaranteed Party or any
other party or any security.

                  (b)      The U.S. 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 U.S. Borrower's Guaranty, and notices of the existence, creation or
incurring of new or additional U.S. Borrower Guaranteed Obligations. The U.S.
Borrower assumes all responsibility for being and keeping itself informed of the
Bermuda Borrower's and each other U.S. Borrower Guaranteed Party's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the U.S. Borrower Guaranteed Obligations and the nature, scope and
extent of the risks which the U.S. Borrower assumes and

                                     -240-



incurs hereunder, and agrees that the Guaranteed Creditors shall have no duty to
advise the U.S. Borrower of information known to them regarding such
circumstances or risks.

                  (c)      Until such time as the U.S. Borrower Guaranteed
Obligations have been paid in full in cash, the U.S. Borrower hereby waives all
rights of subrogation which it may at any time otherwise have as a result of
this U.S. Borrower's Guaranty (whether contractual, under Section 509 of the
Bankruptcy Code, or otherwise) to the claims of the Guaranteed Creditors against
the Bermuda Borrower, any other U.S. Borrower Guaranteed Party or any other
guarantor of the U.S. Borrower Guaranteed Obligations and all contractual,
statutory or common law rights of reimbursement, contribution or indemnity from
the Bermuda Borrower, any other U.S. Borrower Guaranteed Party or any other
guarantor which it may at any time otherwise have as a result of this U.S.
Borrower's Guaranty.

                  (d)      The U.S. Borrower hereby acknowledges and affirms
that it understands that to the extent the U.S. Borrower Guaranteed Obligations
are secured by Real Property located in California, the U.S. Borrower 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
the U.S. Borrower's or any Guaranteed Creditor's right to proceed against any
U.S. Borrower Guaranteed Party or any other guarantor of the U.S. Borrower
Guaranteed Obligations. In accordance with Section 2856 of the California Code
of Civil Procedure, the U.S. Borrower hereby waives:

                  (i)      all rights of subrogation, reimbursement,
         indemnification, and contribution and any other rights and defenses
         that are or may become available to the U.S. Borrower by reason of
         Sections 2787 to 2855, inclusive, 2899 and 3433 of the California Code
         of Civil Procedure;

                  (ii)     all rights and defenses that the U.S. Borrower may
         have because the U.S. Borrower Guaranteed Obligations are secured by
         Real Property located in California, meaning, among other things, that:
         (A) the Guaranteed Creditors may collect from the U.S. Borrower 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 U.S. Borrower 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 the U.S. Borrower even if the
         Guaranteed Creditors, by foreclosing on the Real Property collateral,
         have destroyed any right the U.S. Borrower may have to collect from any
         U.S. Borrower Guaranteed Party, it being understood that this is an
         unconditional and irrevocable waiver of any rights and defenses the
         U.S. Borrower may have because the U.S. Borrower 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 non-judicial foreclosure with respect to security
         for the U.S. Borrower Guaranteed Obligations, has destroyed the U.S.
         Borrower' rights of subrogation and reimbursement against any U.S.

                                     -241-



         Borrower Guaranteed Party by the operation of Section 580d of the
         California Code of Civil Procedure or otherwise.

                  (e)      The U.S. 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 determined to be contrary to
any applicable law of public policy, such waivers shall be effective only to the
maximum extent permitted by law.

                  15.09 Payments. All payments made by the U.S. Borrower
pursuant to this Section 15 shall be made in the respective Applicable Currency
in which the U.S. Borrower 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 the U.S. Borrower
pursuant to this Section 15 will be made without setoff, counterclaim or other
defense, and shall be subject to the provisions of Sections 4.03, 4.04 and
13.23.

                                     * * * *

                                     -242-



                  IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.

Address:

[________________________            DHM HOLDING COMPANY, INC.
_________________________]
Telephone No.:                       By ________________________________________
Facsimile No.:                          Name:
Attention:  [____________]              Title:

[________________________              DOLE FOOD COMPANY, INC.
_________________________]
Telephone No.:                       By ________________________________________
Facsimile No.:                          Name:
Attention:  [____________]              Title:

[________________________              SOLVEST, LTD.
_________________________]
Telephone No.:                       By ________________________________________
Facsimile No.:                          Name:
Attention:  [____________]              Title:

                                     DEUTSCHE BANK AG NEW YORK
                                     BRANCH, Individually and as Administrative
                                     Agent

                                     By ________________________________________
                                        Name:
                                        Title:

                                     By ________________________________________
                                        Name:
                                        Title:



                                    THE BANK OF NOVA SCOTIA,
                                    Individually and as Co-Syndication Agent

                                     By ________________________________________
                                        Name:
                                        Title:

                                     BANC OF AMERICA SECURITIES LLC,
                                     as Co-Syndication Agent

                                     By ________________________________________
                                        Name:
                                        Title:

                                     BANK OF AMERICA, N.A.

                                     By ________________________________________
                                        Name:
                                        Title:

                                     FLEET NATIONAL BANK,
                                     Individually and as Co-Documentation Agent

                                     By ________________________________________
                                        Name:
                                        Title:

                                     SOCIETE GENERALE,
                                     Individually and as Co-Documentation Agent

                                     By ________________________________________
                                        Name:
                                        Title:

                                      -2-



                                     [ADDITIONAL LENDERS]

                                     By ________________________________________
                                        Name:
                                        Title:

                                      -3-

EX-4.10

                                                                    EXHIBIT 4.10

                            DOLE FOOD COMPANY, INC.,

                                    AS ISSUER

                          THE GUARANTORS PARTY HERETO,

                                  AS GUARANTORS

                          8-7/8% SENIOR NOTES DUE 2011

                               ------------------

                                    INDENTURE

                           DATED AS OF MARCH 28, 2003

                               ------------------

                     WELLS FARGO BANK, NATIONAL ASSOCIATION,
                                   AS TRUSTEE



                             CROSS-REFERENCE TABLE*



Trust Indenture Act Section                                                           Indenture Section
- ---------------------------                                                           -----------------
                                                                                   
 310(a)(1)......................................................................        7.10
    (a)(2)......................................................................        7.10
    (a)(3)......................................................................        N.A.
    (a)(4)......................................................................        N.A.
    (a)(5)......................................................................        7.10
    (b).........................................................................        7.3, 7.8, 7.10
    (c).........................................................................        N.A.
 311(a).........................................................................        7.11
    (b).........................................................................        7.11
    (c).........................................................................        N.A.
 312(a).........................................................................        2.5
    (b).........................................................................        13.3
    (c).........................................................................        13.3
 313(a).........................................................................        7.6
    (b)(1)......................................................................        N.A.
    (b)(2)......................................................................        7.6
    (c).........................................................................        7.6, 13.2
 314(a).........................................................................        4.3, 4.4
    (b).........................................................................        N.A.
    (c)(1)......................................................................        13.4
    (c)(2)......................................................................        13.4
    (c)(3)......................................................................        13.4
    (d).........................................................................        N.A.
    (e).........................................................................        13.5
    (f).........................................................................        N.A.
 315(a).........................................................................        7.2
    (b).........................................................................        7.5, 13.2
    (c).........................................................................        7.1
    (d).........................................................................        7.1
    (e).........................................................................        6.12
 316(a)(last sentence)..........................................................        2.9
    (a)(1)(A)...................................................................        6.5
    (a)(1)(B)...................................................................        6.4
    (a)(2)......................................................................        N.A.
    (b).........................................................................        6.7
    (c).........................................................................        N.A.
 317(a)(1)......................................................................        6.8
    (a)(2)......................................................................        6.10
    (b).........................................................................        2.4
 318(a).........................................................................        13.1
    (b).........................................................................        N.A.
    (c).........................................................................        13.1


N.A. MEANS NOT APPLICABLE.

- --------------------------

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



                                TABLE OF CONTENTS



                                                                                                               Page
                                                                                                               ----
                                                                                                            
                                                     ARTICLE I.

                                     DEFINITIONS AND INCORPORATION BY REFERENCE

Section 1.1.  Definitions...................................................................................     1
Section 1.2.  Other Definitions.............................................................................    31
Section 1.3.  Incorporation by Reference of Trust Indenture Act.............................................    32
Section 1.4.  Rules of Construction.........................................................................    32
Section 1.5.  Acts of Holders...............................................................................    33

                                                     ARTICLE II.

                                                      THE NOTES

Section 2.1.  Form and Dating...............................................................................    33
Section 2.2.  Execution and Authentication..................................................................    35
Section 2.3.  Registrar and Paying Agent....................................................................    36
Section 2.4.  Paying Agents to Hold Money in Trust..........................................................    36
Section 2.5.  Holder Lists..................................................................................    37
Section 2.6.  Transfer and Exchange.........................................................................    37
Section 2.7.  Replacement Notes.............................................................................    46
Section 2.8.  Outstanding Notes.............................................................................    46
Section 2.9.  Treasury Notes................................................................................    47
Section 2.10. Temporary Notes...............................................................................    47
Section 2.11. Cancellation..................................................................................    47
Section 2.12. Defaulted Interest............................................................................    47
Section 2.13. Persons Deemed Owners.........................................................................    48
Section 2.14. CUSIP Numbers.................................................................................    48

                                                    ARTICLE III.

                                              REDEMPTION AND REPURCHASE

Section 3.1.  Notices to Trustee............................................................................    48
Section 3.2.  Selection of Notes............................................................................    49
Section 3.3.  Notice of Optional or Special Redemption......................................................    50
Section 3.4.  Effect of Notice of Redemption................................................................    51
Section 3.5.  Deposit of Redemption Price or Purchase Price.................................................    51
Section 3.6.  Notes Redeemed or Repurchased in Part.........................................................    52
Section 3.7.  Optional Redemption...........................................................................    52
Section 3.8.  Optional Redemption Upon Equity Offerings.....................................................    52






                                                                                                               Page
                                                                                                               ----
                                                                                                            
Section 3.9.  Repurchase upon Change of Control Offer.......................................................    52
Section 3.10. Repurchase upon Application of Excess Proceeds................................................    55

                                                     ARTICLE IV.

                                                      COVENANTS

Section 4.1.  Payment of Principal and Interest.............................................................    57
Section 4.2.  Maintenance of Office or Agency...............................................................    57
Section 4.3.  Reports.......................................................................................    58
Section 4.4.  Compliance Certificate........................................................................    58
Section 4.5.  Taxes.........................................................................................    59
Section 4.6.  Stay, Extension and Usury Laws................................................................    59
Section 4.7.  Limitation on Restricted Payments.............................................................    60
Section 4.8.  Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.......    64
Section 4.9.  Limitation on Incurrence of Additional Indebtedness...........................................    66
Section 4.10. Limitation on Asset Sales.....................................................................    66
Section 4.11. Limitations on Transactions with Affiliates...................................................    69
Section 4.12. Limitation on Liens...........................................................................    71
Section 4.13. Continued Existence...........................................................................    72
Section 4.14. Insurance Matters.............................................................................    72
Section 4.15. Offer to Repurchase upon Change of Control....................................................    72
Section 4.16. Additional Subsidiary Guarantees..............................................................    73
Section 4.17. Conduct of Business...........................................................................    74
Section 4.18. Payments for Consent..........................................................................    74
Section 4.19. Limitation on Issuance of Preferred Stock of Restricted Subsidiaries..........................    74
Section 4.20. Prohibition on Incurrence of Senior Subordinated Guarantees...................................    74
Section 4.21. Limitation of Guarantees by Restricted Subsidiaries...........................................    74
Section 4.22. Capital Call Agreement........................................................................    75
Section 4.23. Existing Notes Covenants......................................................................    75

                                                     ARTICLE V.

                                                     SUCCESSORS

Section 5.1.  Merger, Consolidation and Sale of Assets......................................................    81
Section 5.2.  Successor Corporation Substituted.............................................................    83


                                      -ii-





                                                                                                               Page
                                                                                                               ----
                                                                                                            
                                                     ARTICLE VI.

                                                DEFAULTS AND REMEDIES

Section 6.1.  Events of Default.............................................................................    83
Section 6.2.  Acceleration..................................................................................    85
Section 6.3.  Other Remedies................................................................................    86
Section 6.4.  Waiver of Past Defaults.......................................................................    87
Section 6.5.  Control by Majority...........................................................................    87
Section 6.6.  Limitation on Suits...........................................................................    87
Section 6.7.  Rights of Holders of Notes To Receive Payment.................................................    88
Section 6.8.  Collection Suit by Trustee....................................................................    88
Section 6.9.  Notice........................................................................................    88
Section 6.10. Trustee May File Proofs of Claim..............................................................    88
Section 6.11. Priorities....................................................................................    89
Section 6.12. Undertaking for Costs.........................................................................    89

                                                    ARTICLE VII.

                                                       TRUSTEE

Section 7.1.  Duties of Trustee.............................................................................    90
Section 7.2.  Rights of Trustee.............................................................................    91
Section 7.3.  Individual Rights of Trustee..................................................................    92
Section 7.4.  Trustee's Disclaimer..........................................................................    92
Section 7.5.  Notice of Defaults............................................................................    93
Section 7.6.  Reports by Trustee to Holder of the Notes.....................................................    93
Section 7.7.  Compensation, Reimbursement and Indemnity.....................................................    93
Section 7.8.  Replacement of Trustee........................................................................    94
Section 7.9.  Successor Trustee by Merger, Etc..............................................................    95
Section 7.10. Eligibility; Disqualification.................................................................    96
Section 7.11. Preferential Collection of Claims Against Company.............................................    96

                                                    ARTICLE VIII.

                                      LEGAL DEFEASANCE AND COVENANT DEFEASANCE

Section 8.1.  Option to Effect Legal Defeasance or Covenant Defeasance......................................    96
Section 8.2.  Legal Defeasance and Discharge................................................................    96
Section 8.3.  Covenant Defeasance...........................................................................    97
Section 8.4.  Conditions to Legal or Covenant Defeasance....................................................    97
Section 8.5.  Deposited Money and U.S. Government Obligations To Be Held in Trust; Other
              Miscellaneous Provisions......................................................................    99
Section 8.6.  Repayment to the Company......................................................................   100
Section 8.7.  Reinstatement.................................................................................   100


                                     -iii-





                                                                                                              Page
                                                                                                              ----
                                                                                                           
                                                     ARTICLE IX.

                                          AMENDMENT, SUPPLEMENT AND WAIVER

Section 9.1.  Without Consent of Holders of Notes...........................................................   100
Section 9.2.  With Consent of Holders of Notes..............................................................   101
Section 9.3.  Compliance with Trust Indenture Act...........................................................   103
Section 9.4.  Revocation and Effect of Consents.............................................................   103
Section 9.5.  Notation on or Exchange of Notes..............................................................   103
Section 9.6.  Trustee To Sign Amendment, Etc................................................................   104

                                                     ARTICLE X.

                                           SUBORDINATION OF THE GUARANTEES

Section 10.1. Guarantees Subordinated to Guarantor Senior Debt..............................................   104
Section 10.2. Suspension of Payment When Guarantor Senior Debt Is in Default................................   105
Section 10.3. Guarantees Subordinated to Prior Payment of All Guarantor Senior Debt on Dissolution,
              Liquidation or Reorganization of the Guarantors...............................................   106
Section 10.4. Payments May Be Paid Prior to Dissolution.....................................................   108
Section 10.5. Holders To Be Subrogated to Rights of Holders of Guarantor Senior Debt........................   108
Section 10.6. Obligations of Guarantors Unconditional.......................................................   109
Section 10.7. Notice to Trustee.............................................................................   109
Section 10.8. Reliance on Judicial Order or Certificate of Liquidating Agent................................   110
Section 10.9. Trustee's Relation to Guarantor Senior Debt...................................................   110
Section 10.10.Subordination Rights Not Impaired by Acts or Omissions of the
               Guarantors or Holders of Guarantor Senior Debt...............................................   110

Section 10.11.Securityholders Authorize Trustee To Effectuate Subordination of Guarantees...................   111
Section 10.12.This Article X Not To Prevent Events of Default...............................................   112
Section 10.13.Trustee's Compensation Not Prejudiced.........................................................   112

                                                     ARTICLE XI.

                                                      GUARANTEE

Section 11.1. Unconditional Guarantee.......................................................................   112
Section 11.2. Severability..................................................................................   113
Section 11.3. Limitation of Guarantor's Liability...........................................................   113
Section 11.4. Release of Guarantor..........................................................................   113


                                      -iv-





                                                                                                               Page
                                                                                                               ----
                                                                                                            
Section 11.5. Immediate Payment.............................................................................   114
Section 11.6. Waiver of Subrogation.........................................................................   114
Section 11.7. Execution of Guarantee........................................................................   115
Section 11.8. Waiver of Stay, Extension or Usury Laws.......................................................   115

                                                    ARTICLE XII.

                                             SATISFACTION AND DISCHARGE

Section 12.1. Satisfaction and Discharge....................................................................   115
Section 12.2. Application of Trust..........................................................................   116

                                                    ARTICLE XIII.

                                                    MISCELLANEOUS

Section 13.1. Trust Indenture Act Controls..................................................................   117
Section 13.2. Notices.......................................................................................   117
Section 13.3. Communication by Holders of Notes with Other Holders of Notes.................................   118
Section 13.4. Certificate and Opinion as to Conditions Precedent............................................   118
Section 13.5. Statements Required in Certificate or Opinion.................................................   119
Section 13.6. Rules by Trustee and Agents...................................................................   119
Section 13.7. No Personal Liability of Directors, Officers, Employees and Stockholders......................   119
Section 13.8. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial...............................   120
Section 13.9. No Adverse Interpretation of Other Agreements.................................................   120
Section 13.10.Successors....................................................................................   121
Section 13.11.Severability..................................................................................   121
Section 13.12.Counterpart Originals.........................................................................   121
Section 13.13.Table of Contents, Headings, Etc..............................................................   121
Section 13.14.Qualification of Indenture....................................................................   121


                                    EXHIBITS

               
Exhibit A         Form of Series A Note

Exhibit B         Form of Series B Note

Exhibit C         Form of Guarantee

Exhibit D(1)      Form of Regulation S Certification



                                      -v-



               
Exhibit D(2)      Form of Certificate to Be Delivered upon Exchange or Registration
                  of Transfer of Notes

Exhibit E         Form of Certificate to Be Delivered in Connection with Transfers
                  to Non-QIB Accredited Investors

Exhibit F         Form of Certificate to Be Delivered in Connection with Transfers
                  Pursuant to Regulation S



                                      -vi-



                                    INDENTURE

                  INDENTURE dated as of March 28, 2003 among Dole Food Company,
Inc., a Delaware corporation (the "Company"), the Guarantors (as defined herein)
listed on Schedule A hereto and Wells Fargo Bank, National Association, as
trustee (the "Trustee").

                  Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders (as defined below)
of the Company's 8-7/8% Senior Notes due 2011:

                                   ARTICLE I.

                  DEFINITIONS AND INCORPORATION BY REFERENCE

Section 1.1.      Definitions.

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

                  "Additional Interest" means all additional interest then owing
pursuant to Section 4 of the Registration Rights Agreement.

                  "Additional Notes" means Notes, in addition to, and having
identical terms as, the $475,000,000 aggregate principal amount of Series A
Notes issued on the Issue Date (or the Series B Notes issued in exchange for the
Series A Notes issued on the Issue Date), issued pursuant to Article II and in
compliance with Section 4.9

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

                  "Agent" means any Registrar, Paying Agent or co-registrar.



                                      -2-

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

                  "Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other transfer for value by the
Company or any of its Restricted Subsidiaries (including any Sale and Leaseback
Transaction) to any Person other than the Company, a Guarantor or a Wholly Owned
Restricted Subsidiary of the Company of: (1) any Capital Stock of any Restricted
Subsidiary of the Company; or (2) any other property or assets of the Company or
any Restricted Subsidiary of the Company other than in the ordinary course of
business; provided, however, that none of the following shall be considered an
Asset Sale: (a) a transaction or series of related transactions for which the
Company or its Restricted Subsidiaries receive aggregate consideration of less
than $5.0 million; (b) the sale, lease, conveyance, disposition or other
transfer of all or substantially all of the assets of the Company as permitted
under Article V; (c) the grant of Liens not prohibited by this Indenture; (d)
any Restricted Payment permitted by Section 4.7 or that constitutes a Permitted
Investment; (e) the sale or discount, in each case without recourse, of accounts
receivable arising in the ordinary course of business, but only in connection
with the compromise or collection thereof; and (f) disposals or replacements of
obsolete, worn out, uneconomical or surplus property or equipment.

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

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

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



                                      -3-

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

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

                  "Capital Call Agreement" means the Capital Call Agreement to
be dated on or about the Issue Date by and among David H. Murdock, individually,
and as trustee for the David H. Murdock Living Trust, Holdings and Deutsche Bank
AG New York Branch, as administrative agent.

                  "Capital Stock" means:

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

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

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

                  "Cash Equivalents" means:

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

                  (2)      securities issued by, or unconditionally guaranteed
         by, the United States Government, the governments of Canada, Japan,
         Sweden, Switzerland or the member states of the United Kingdom or the
         European Union or issued by any agency



                                      -4-

         thereof and backed by the full faith and credit of the United States,
         Canada, Japan, Sweden, Switzerland or the member states of the United
         Kingdom or the European Union, in each case maturing within one year
         from the date of acquisition thereof;

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

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

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

                  (6)      eurodollar time deposits;

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

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

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

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

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



                                      -5-

         in compliance with the provisions of this Indenture), other than to the
         Permitted Holders;

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

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

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

                  "Clearstream" shall mean Clearstream Banking, Societe Anonyme,
         Luxembourg.

                  "Commission" means the Securities and Exchange Commission.

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

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



                                      -6-

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

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

                  (1)      Consolidated Net Income; and

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

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

                           (b)      Consolidated Interest Expense; and

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

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

                  "Consolidated Fixed Charge Coverage Ratio" means, with respect
to any Person, the ratio of Consolidated EBITDA of such Person during the four
full fiscal quarters (the "Four Quarter Period") ending prior to the date of the
transaction giving rise to the need to calculate the Consolidated Fixed Charge
Coverage Ratio for which financial statements are available (the "Transaction
Date") to Consolidated Fixed Charges of such Person for the Four Quarter Period.
In addition to and without limitation of the foregoing, for purposes of this
definition, "Consolidated EBITDA" and "Consolidated Fixed Charges" shall be
calculated after giving effect on a pro forma basis for the period of such
calculation to:

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



                                      -7-

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

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

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

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

                  (1)      interest on outstanding Indebtedness determined on a
         fluctuating basis as of the Transaction Date and which will continue to
         be so determined thereafter shall



                                      -8-

         be deemed to have accrued at a fixed rate per annum equal to the rate
         of interest on such Indebtedness in effect on the Transaction Date; and

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

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

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

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

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

                  (1)      the aggregate of the interest expense of such Person
         and its Restricted Subsidiaries for such period determined on a
         consolidated basis in accordance with GAAP, including without
         limitation: (a) any amortization of debt discount and amortization or
         write-off of deferred financing costs; (b) the net costs under Interest
         Swap Obligations; (c) all capitalized interest; and (d) the interest
         portion of any deferred payment obligation; and

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

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



                                      -9-

                  (1)      after-tax gains and losses from Asset Sales (without
         regard to the $5.0 million limitation set forth in the definition
         thereof) or abandonments or reserves relating thereto;

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

                  (3)      the net income of any Person acquired in a "pooling
         of interests" transaction accrued prior to the date it becomes a
         Restricted Subsidiary of the referent Person or is merged or
         consolidated with the referent Person or any Restricted Subsidiary of
         the referent Person;

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

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

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

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

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

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

                  (i)      any premiums, fees or expenses incurred in connection
         with the transactions; and

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



                                      -10-

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

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

                  "Corporate Trust Office of the Trustee" means the principal
office of the Trustee at which at any time its corporate trust business shall be
administered, which office at the date hereto is located at 707 Wilshire
Boulevard, 17th floor, Los Angeles, California 90017, Attention: Corporate Trust
Department, or such other address as the Trustee may designate from time to time
by notice to the Holders and the Company, or the principal corporate trust
office of any successor Trustee (or such other address as such successor Trustee
may designate from time to time by notice to the Holders and the Company).

                  "Credit Agreement" means the Credit Agreement entered into on
the Issue Date, among Holdings, the Company, Solvest Ltd., the lenders party
thereto in their capacities as lenders thereunder and Deutsche Bank AG New York
Branch, as administrative agent, The Bank of Nova Scotia and Bank of America,
N.A., as co-syndication agents, and Fleet National Bank and Societe Generale, as
co-documentation agents, together with the related documents thereto (including,
without limitation, any guarantee agreements and security documents), in each
case as such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including, without limitation, increasing the amount of available
borrowings thereunder or adding Restricted Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement or
agreements and whether by the same or any other agent, lender or group of
lenders.

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

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

                  "Depositary" means, with respect to the Notes issuable in
whole or in part in global form, the Person specified in Section 2.6 hereof as
the Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable



                                      -11-

provisions or this Indenture, and, thereafter, "Depositary" shall mean or
include such successor.

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

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

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

                  "Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System.

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

                  "Exchange Offer" means the offer that shall be made by the
Company pursuant to the Registration Rights Agreement to exchange Series A Notes
for Series B Notes.

                  "Existing Notes" means (i) the $400.0 million in aggregate
principal amount of the Company's 8.625% notes due 2009 and (ii) the $155.0
million in aggregate principal amount of the Company's 8.75% debentures due
2013.

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



                                      -12-

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

                  "Final Memorandum" shall mean the Company's final offering
memorandum dated March 17, 2003, whereby the Company offered $475,000,000
aggregate principal amount of its Series A Notes.

                  "Foreign Restricted Subsidiary" means any Restricted
Subsidiary other than a Domestic Restricted Subsidiary.

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

                  "Guarantee" has the meaning set forth in Section 11.1.

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

                  "Guarantor Designated Senior Debt" means (1) Indebtedness of a
Guarantor under or in respect of the Credit Agreement and (2) any other
Indebtedness of a Guarantor constituting Guarantor Senior Debt which, at the
time of determination, has an aggregate principal amount of at least $50.0
million and is specifically designated in the instrument evidencing such
Guarantor Senior Debt as "Guarantor Designated Senior Debt" by the Company.

                  "Guarantor Senior Debt" means, with respect to any Guarantor:
the principal of, premium, if any, and interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for in
the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law) on any Indebtedness of, or guaranteed by, a
Guarantor, whether outstanding on the Issue Date or thereafter created, incurred
or assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides



                                      -13-

that such Indebtedness shall not be senior in right of payment to the Guarantee
of such Guarantor. Without limiting the generality of the foregoing, "Guarantor
Senior Debt" shall also include the principal of, premium, if any, interest
(including any interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable law) on, and
all other amounts owing in respect of (including guarantees of the foregoing
obligations):

                  (x)      all monetary obligations of every nature of such
         Guarantor under, or with respect to, the Credit Agreement, including,
         without limitation, obligations to pay principal, premium and interest,
         reimbursement obligations under letters of credit and bank guarantees,
         fees, expenses and indemnities (and guarantees thereof);

                  (y)      all Interest Swap Obligations (and guarantees
         thereof); and

                  (z)      all obligations under Currency Agreements (and
         guarantees thereof),

in each case whether outstanding on the Issue Date or thereafter incurred.

                  Notwithstanding the foregoing, "Guarantor Senior Debt" shall
not include:

                  (1)      any Indebtedness of such Guarantor to a Subsidiary of
         such Guarantor;

                  (2)      Indebtedness to, or guaranteed on behalf of, any
         director, officer or employee of such Guarantor or any Subsidiary of
         such Guarantor (including, without limitation, amounts owed for
         compensation);

                  (3)      Indebtedness to trade creditors and other amounts
         incurred in connection with obtaining goods, materials or services;
         provided that obligations incurred pursuant to the Credit Agreement
         shall not be excluded pursuant to this clause (3);

                  (4)      Indebtedness represented by Disqualified Capital
         Stock;

                  (5)      any liability for federal, state, local or other
         taxes owed or owing by such Guarantor;

                  (6)      that portion of any Indebtedness incurred in
         violation of Section 4.9 (but, as to any such obligation, no such
         violation shall be deemed to exist for purposes of this clause (6) if
         the holder(s) of such obligation or their representative shall have
         received an officer's certificate (and/or a representation or warranty)
         from the Company to the effect that the incurrence of such Indebtedness
         does not (or, in the case of revolving credit indebtedness, that the
         incurrence of the entire committed amount thereof at the date on which
         the initial borrowing thereunder is made would not) violate such
         Section);



                                      -14-

                  (7)      with respect to any Guarantor, Indebtedness which,
         when incurred and without respect to any election under Section 1111(b)
         of Title 11, United States Code, is without recourse to such Guarantor;

                  (8)      the guarantees of the Existing Notes or the
         Guarantees; and

                  (9)      with respect to any Guarantor, any Indebtedness which
         is, by its express terms, subordinated in right of payment to any other
         Indebtedness of such Guarantor.

                  "Holder" means a Person in whose name a Note is registered.

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

                  "Indebtedness" means with respect to any Person, without
duplication:

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

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

                  (3)      all Capitalized Lease Obligations of such Person;

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

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

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

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



                                      -15-

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

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

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

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

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

                  "Initial Purchasers" means Deutsche Bank Securities Inc., Banc
of America Securities LLC, Scotia Capital (USA) Inc., Fleet Securities, Inc., SG
Cowen Securities Corporation and BMO Nesbitt Burns Corp.

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

                  "Investment" means, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without limitation, a
guarantee) or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase or acquisition by such Person of any Capital
Stock, bonds, notes, debentures or other securities or evidences of Indebtedness
issued by, any other Person. "Investment" shall exclude extensions of trade
credit by the Company and its Restricted Subsidiaries on commercially reasonable
terms in accordance



                                      -16-

with normal trade practices of the Company or such Restricted Subsidiaries, as
the case may be. If the Company or any Restricted Subsidiary of the Company
sells or otherwise disposes of any Common Stock of any direct or indirect
Restricted Subsidiary of the Company such that, after giving effect to any such
sale or disposition, the Company no longer owns, directly or indirectly, 50% of
the outstanding Common Stock of such Restricted Subsidiary, the Company shall be
deemed to have made an Investment on the date of any such sale or disposition
equal to the fair market value of the Common Stock of such Restricted Subsidiary
not sold or disposed of.

                  "Issue Date" means March 28, 2003, the date of original
issuance of the Notes.

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

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

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

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

                  (3)      repayment of Indebtedness that is secured by the
         property or assets that are the subject of such Asset Sale or that is
         required, pursuant to an agreement or instrument existing on the Issue
         Date, to be repaid from the proceeds of such Asset Sale other than
         pursuant to this Indenture; and

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



                                      -17-

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

                  "Notes" means the Series A Notes and the Series B Notes, if
any, that are issued under this Indenture, as amended or supplemented from time
to time.

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

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

                  "Officers' Certificate" means a certificate signed by two
officers of the Company, at least one of whom shall be the principal executive
officer or principal financial officer of the Company, and delivered to the
Trustee.

                  "Opinion of Counsel" means an opinion from legal counsel who
is reasonably acceptable to the Trustee that meets the requirements of Sections
13.4 and 13.5 hereof. The counsel may be an employee of or counsel to the
Company, any Subsidiary of the Company or the Trustee.

                  "Pari Passu Debt" means any Indebtedness of the Company or any
Guarantor that ranks pari passu in right of payment with the Notes or such
Guarantee, as applicable.

                  "Permitted Holders" means (i) David H. Murdock, his estate,
spouse, heirs, ancestors, lineal descendants, legatees, legal representatives or
the trustee of a bona fide trust of which one or more of the foregoing are the
principal beneficiaries or grantors thereof and (ii) any entity controlled,
directly or indirectly, by any Persons referred to in the preceding clause (i),
whether through the ownership of voting securities, by contract or otherwise.

                  "Permitted Indebtedness" means, without duplication, each of
the following:

                  (1)      Indebtedness under the Notes or the Exchange Notes
         (as defined in the Registration Rights Agreement) in an aggregate
         principal amount not to exceed $475.0 million and the Guarantees
         thereof;

                  (2)      Indebtedness incurred pursuant to the Credit
         Agreement in an aggregate principal amount at any time outstanding not
         to exceed $1,125.0 million less the amount of all repayments of terms
         loans and permanent commitment reductions in the



                                      -18-

         revolving credit portion of the Credit Agreement actually made with Net
         Cash Proceeds of Asset Sales applied thereto as required by Section
         4.10;

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

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

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

                  (6)      Indebtedness of a Restricted Subsidiary of the
         Company to the Company or to a Wholly Owned Restricted Subsidiary of
         the Company for so long as such Indebtedness is held by the Company or
         a Wholly Owned Restricted Subsidiary of the Company or the holder of a
         Lien permitted under this Indenture, in each case subject to no Lien
         held by a Person other than the Company or a Wholly Owned Restricted
         Subsidiary of the Company or the holder of a Lien permitted under this
         Indenture; provided that if as of any date any Person other than the
         Company or a Wholly Owned Restricted Subsidiary of the Company or the
         holder of a Lien permitted under this Indenture owns or holds any such
         Indebtedness or holds a Lien in respect of such Indebtedness, such date
         shall be deemed the incurrence of Indebtedness not constituting
         Permitted Indebtedness under this clause (6) by the issuer of such
         Indebtedness;

                  (7)      (A) Indebtedness of the Company to a Wholly Owned
         Restricted Subsidiary of the Company for so long as such Indebtedness
         is held by a Wholly Owned Restricted Subsidiary of the Company or the
         holder of a Lien permitted under this Indenture, in each case subject
         to no Lien other than a Lien permitted under this Indenture; provided
         that (a) any Indebtedness of the Company to any Wholly Owned Restricted
         Subsidiary of the Company that is not a Guarantor is unsecured and
         subordi-



                                      -19-

         nated, pursuant to a written agreement, to the Company's obligations
         under this Indenture and the Notes and (b) if as of any date any Person
         other than a Wholly Owned Restricted Subsidiary of the Company or the
         holder of a Lien permitted under this Indenture owns or holds any such
         Indebtedness or holds a Lien in respect of such Indebtedness, such date
         shall be deemed the incurrence of Indebtedness not constituting
         Permitted Indebtedness under this clause (7) by the Company and (B)
         Indebtedness of the Company or any of its Restricted Subsidiaries to
         Saba Trading AB or any other Restricted Subsidiary of the Company that
         is not a Wholly Owned Restricted Subsidiary of the Company in the
         ordinary course of business consistent with past practice;

                  (8)      Indebtedness arising from the honoring by a bank or
         other financial institution of a check, draft or similar instrument
         inadvertently (except in the case of daylight overdrafts) drawn against
         insufficient funds in the ordinary course of business; provided,
         however, that such Indebtedness is extinguished within five business
         days of incurrence;

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

                  (10)     Indebtedness represented by Capitalized Lease
         Obligations, mortgage financings and Purchase Money Indebtedness of the
         Company and its Restricted Subsidiaries incurred in the ordinary course
         of business not to exceed $25.0 million at any one time outstanding;

                  (11)     Refinancing Indebtedness;

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

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

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



                                      -20-

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

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

                  (17)     Indebtedness of Foreign Restricted Subsidiaries in an
         aggregate principal amount not to exceed $50.0 million at any one time
         outstanding;

                  (18)     Indebtedness of Foreign Restricted Subsidiaries (and
         any guarantee thereof by the Company) incurred in connection with
         grower loan programs in an aggregate principal amount not to exceed
         $50.0 million at any one time outstanding;

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

                  (20)     Indebtedness of the Company or any of its Restricted
         Subsidiaries incurred in connection with vehicle inventory loans in an
         aggregate principal amount not to exceed $5.0 million at any one time
         outstanding;

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

                  (22)     additional Indebtedness of the Company and its
         Restricted Subsidiaries in an aggregate principal amount not to exceed
         $35.0 million at any one time outstanding (which amount may, but need
         not, be incurred in whole or in part under the Credit Agreement).

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



                                      -21-

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

                  "Permitted Investments" means:

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

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

                  (3)      Investments in cash and Cash Equivalents;

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

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

                  (6)      additional Investments not to exceed $50.0 million at
         any one time outstanding;

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



                                      -22-

                  (8)      Investments made by the Company or its Restricted
         Subsidiaries as a result of consideration received in connection with
         an Asset Sale made in compliance with Section 4.10, whether or not such
         consideration is equal to or greater than $5.0 million;

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

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

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

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

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

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

                  "Permitted Liens" means the following types of Liens:

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

                  (2)      Liens securing Indebtedness and any other Obligations
         under the Credit Agreement;

                  (3)      Liens securing Guarantor Senior Debt;

                  (4)      Liens securing the Notes and the Guarantees;

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

                  (6)      Liens securing Refinancing Indebtedness which is
         incurred to Refinance any Indebtedness which has been secured by a Lien
         permitted under this Indenture and which has been incurred in
         accordance with the provisions of this Indenture;



                                      -23-

         provided, however, that such Liens: (i) are no less favorable to the
         Holders in any material respect and are not more favorable to the
         lienholders in any material respect with respect to such Liens than the
         Liens in respect of the Indebtedness being Refinanced; and (ii) do not
         extend to or cover any property or assets of the Company or any of its
         Restricted Subsidiaries not securing the Indebtedness so Refinanced;

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

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

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

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

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

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



                                      -24-

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

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

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

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

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

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

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

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

                           (b)      such Liens do not extend to or cover any
                  property or assets of the Company or of any of its Restricted
                  Subsidiaries other than the property or assets that secured
                  the Acquired Indebtedness prior to the time such Indebtedness
                  became Acquired Indebtedness of the Company or a Restricted
                  Subsidiary



                                      -25-

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

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

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

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

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

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

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

                  "PORTAL Market" means the Portal Market operated by the
National Association of Securities Dealers, Inc. or any successor thereto.

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

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

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



                                      -26-

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

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

                  "Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.

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

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

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

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

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

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

provided that (x) if such Indebtedness being Refinanced is Indebtedness solely
of the Company (and is not otherwise guaranteed by a Restricted Subsidiary of
the Company), then such Refinancing Indebtedness shall be Indebtedness solely of
the Company and (y) if such Indebtedness being Refinanced is subordinate or
junior to the Notes or the Guarantees, then such



                                      -27-

Refinancing Indebtedness shall be subordinate to the Notes or the Guarantees, as
the case may be, at least to the same extent and in the same manner as the
Indebtedness being Refinanced.

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

                  "Regulation S" means Regulation S as promulgated under the
Securities Act.

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

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

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

                  "Rule 144A" means Rule 144A promulgated under the Securities
Act.

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

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

                  "Series A Notes" means the Company's 8-7/8% Senior Notes due
2011.

                  "Series B Notes" means notes issued by the Company hereunder
containing terms identical to the Series A Notes (except that (i) interest
thereon shall accrue from the last date on which interest was paid on the Series
A Notes or, if no such interest has been paid,



                                      -28-

from the date of original issuance, (ii) the legend or legends relating to
transferability and other related matters set forth on the Series A Notes,
including the text referred to in footnote 2 of Exhibit A hereto, shall be
removed or appropriately altered, and (iii) as otherwise set forth herein), to
be offered to Holders of Series A Notes in exchange for Series B Notes pursuant
to the Exchange Offer or any exchange offer specified in any registration rights
agreement relating to the Additional Notes or to be offered in connection with
any issuance of Additional Notes pursuant to a registration statement filed
pursuant to the Securities Act.

                  "Significant Subsidiary", with respect to any Person, means
any Restricted Subsidiary of such Person that satisfies the criteria for a
"significant subsidiary" set forth in Rule 1-02(w) of Regulation S-X under the
Exchange Act.

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

                  "Subsidiary", with respect to any Person, means:

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

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

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

                  "Transfer Restricted Security" means a Note that is a
restricted security as defined in Rule 144(a)(3) under the Securities Act.

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



                                      -29-

                  "Unrestricted Subsidiary" of any Person means:

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

                  (2)      any Subsidiary of an Unrestricted Subsidiary.

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

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

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

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

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

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

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



                                      -30-

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

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

                  "U.S. Person" means any U.S. person as defined in Regulation
S.

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

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

                  "Wholly Owned Subsidiary" of any Person means any Subsidiary
of such Person of which all the outstanding voting securities (other than in the
case of a foreign Subsidiary, directors' qualifying shares or an immaterial
amount of shares required to be owned by other Persons pursuant to applicable
law) are owned by such Person or any Wholly Owned Subsidiary of such Person.



                                      -31-

Section 1.2.      Other Definitions.



                        Term                                  Defined in Section
                        ----                                  ------------------
                                                           
"Acceleration Notice"..............................                 6.2
"Affiliate Transaction"............................                4.11
"Agent Members"....................................                 2.6
"Certificated Notes"...............................                 2.1
"Change of Control Offer"..........................                4.15
"Change of Control Offer Period"...................                 3.9
"Covenant Defeasance"..............................                 8.3
"Event of Default".................................                 6.1
"Foreign Person"...................................                 2.6
"Global Notes".....................................                 2.1
"incur"............................................                 4.9
"Institutional Accredited Investors"...............                 2.1
"Legal Defeasance".................................                 8.2
"Net Proceeds Offer"...............................                4.10
"Net Proceeds Offers Amount".......................                4.10
"Net Proceeds Offer Payment Date...................                4.10
"Net Proceeds Offers Trigger Date".................                4.10
"Non-payment Default...............................                10.2
"Offshore Certificated Notes"......................                 2.1
"Optional Redemption"..............................                 3.7
"Paying Agent".....................................                 2.3
"Payment Blockage Notice...........................                10.2
"Payment Blockage Period...........................                10.2
"Payment Default"..................................                10.2
"Permanent Regulation S Global Note"...............                 2.1
"Private Placement Legend".........................                 2.6
"Registrar"........................................                 2.3
"Regulation S Global Note".........................                 2.1
"Restricted Payment"...............................                 4.7
"Rule 144A Global Note"............................                 2.1
"Special Redemption"...............................                 3.8
"Surviving Entity".................................                 5.1
"Temporary Regulation S Global Note"...............                 2.1
"U.S. Certificated Notes"..........................                 2.1




                                      -32-

Section 1.3.      Incorporation by Reference of Trust Indenture Act.

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

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

                  "indenture securities" means the Notes;

                  "indenture security holder" means a Holder;

                  "indenture to be qualified" means this Indenture;

                  "indenture trustee" or "institutional trustee" means the
Trustee;

                  "obligor" on the Notes means the Company and any successor
obligor upon the Notes.

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

Section 1.4.      Rules of Construction.

                  Unless the context otherwise requires:

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

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

                  (c)      "or" is not exclusive;

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

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

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



                                      -33-

Section 1.5.      Acts of Holders.

                  (a)      Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 7.1) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.

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

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

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

                                  ARTICLE II.

                                    THE NOTES

Section 2.1.      Form and Dating.

                  The Series A Notes and the Trustee's certificate of
authentication relating thereto shall be substantially in the form of Exhibit A
hereto. The Notes may have notations, legends or endorsements required by law,
stock exchange rule or usage in addition to those set forth in Exhibit A hereto.
The Series B Notes shall be substantially in the form of Exhibit B hereto. The
notation on each Note relating to the Guarantees shall be substantially in the
form



                                      -34-

set forth on Exhibit C hereto. Each Note shall be dated the date of its
authentication. The Notes shall be in denominations of $1,000 and integral
multiples thereof.

                  The terms and provisions contained in the Notes and Guarantees
shall constitute, and are hereby expressly made, a part of this Indenture and
the Company, the Guarantors and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound
thereby.

                  Notes offered and sold in reliance on Rule 144A shall be
issued initially in the form of a single permanent global Note in registered
form, substantially in the form set forth in Exhibit A (the "Rule 144A Global
Note"), deposited with the Trustee, as custodian for the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter provided
and shall bear the legend set forth in Section 2.6(h). The aggregate principal
amount of the Rule 144A Global Note may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary or its nominee, as hereinafter provided.

                  Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of a single temporary global
Note in registered form, substantially in the form set forth in Exhibit A (the
"Temporary Regulation S Global Note"), deposited with the Trustee, as custodian
for the Depositary, duly executed by the Company and authenticated by the
Trustee as hereinafter provided and shall bear the legend set forth in Section
2.6(h). At any time following 40 days after the later of the commencement of the
offering of the Notes and the Issue Date, upon receipt by the Trustee and the
Company of a duly executed certificate substantially in the form of Exhibit D(1)
hereto, a single permanent Global Note in registered form substantially in the
form set forth in Exhibit A (the "Permanent Regulation S Global Note," and
together with the Temporary Regulation S Global Note, the "Regulation S Global
Note") duly executed by the Company and authenticated by the Trustee as
hereinafter provided shall be deposited with the Trustee, as custodian for the
Depositary, and the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of the Regulation S Global Note in an
amount equal to the principal amount of the beneficial interest in the
Regulation S Global Note transferred.

                  Notes offered and sold to institutional accredited investors
(as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act)
("Institutional Accredited Investors") shall be issued in the form of permanent
U.S. Certificated Notes in registered form in substantially the form set forth
in Exhibit A (the "U.S. Certificated Notes"). Notes issued pursuant to Section
2.6 in exchange for interests in the Rule 144A Global Note or the Regulation S
Global Note shall be in the form of permanent Certificated Notes in registered
form substantially in the form set forth in Exhibit A (the "Offshore
Certificated Notes").



                                      -35-

                  The Offshore Certificated Notes and U.S. Certificated Notes
are sometimes collectively herein referred to as the "Certificated Notes." The
Rule 144A Global Note and the Regulation S Global Note are sometimes referred to
herein as the "Global Notes."

Section 2.2.      Execution and Authentication.

                  Two Officers of the Company shall sign the Notes for the
Company by manual or facsimile signature.

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

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

                  The Trustee, upon a written order of the Company signed by two
Officers of the Company, together with the other documents required by Sections
13.4 and 13.5 hereof, shall authenticate (i) Series A Notes for original issue
on the Issue Date in the aggregate principal amount not to exceed $475,000,000
and (ii) subject to Section 4.9, Additional Notes. The Trustee, upon written
order of the Company signed by two Officers of the Company, together with the
other documents required by Sections 13.4 and 13.5 hereof, shall authenticate
Series B Notes; provided that such Series B Notes shall be issuable only upon
the valid surrender for cancellation of Series A Notes of a like aggregate
principal amount in accordance with the Exchange Offer or an exchange offer
specified in any registration rights agreement relating to the Additional Notes
or to be offered in connection with any issuance of Additional Notes pursuant to
a registration statement filed pursuant to the Securities Act. Such written
order of the Company shall specify the amount of Notes to be authenticated and
the date on which the original issue of Notes is to be authenticated. Any
Additional Notes shall be part of the same issue as the Notes being issued on
the Issue Date and will vote on all matters as one class with the Notes being
issued on the Issue Date, including, without limitation, waivers, amendments,
redemptions, Change of Control Offers and Net Proceeds Offers. For the purposes
of this Indenture, except for Section 4.9 hereof, references to the Notes
include Additional Notes, if any.

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



                                      -36-

Section 2.3.      Registrar and Paying Agent.

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

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

Section 2.4.      Paying Agents to Hold Money in Trust.

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



                                      -37-

Section 2.5.      Holder Lists.

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

Section 2.6.      Transfer and Exchange.

                  (a)      Transfer and Exchange Generally: Book Entry
Provisions. Upon surrender for registration of transfer of any Note to the
Registrar, and satisfaction of the requirements for such transfer set forth in
this Section 2.6, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Notes of any authorized denominations and of a like aggregate principal
amount and bearing such restrictive legends as may be required by this
Indenture.

                  Notes may be exchanged for other Notes of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Notes to be exchanged at any such office or agency maintained by the Company
pursuant to Section 4.2 hereof. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Notes which the Holder making the exchange is entitled to receive
bearing registration numbers not contemporaneously outstanding.

                  All Notes presented or surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Registrar, and the Notes shall be duly executed by the Holder thereof or his
attorney duly authorized in writing. Except as otherwise provided in this
Indenture, and in addition to the requirements set forth in the legend referred
to in Section 2.6(h)(i) below, in connection with any transfer of Transfer
Restricted Securities any request for transfer shall be accompanied by a
certification to the Trustee relating to the manner of such transfer
substantially in the form of Exhibit D(2) hereto.

                  (b)      Book-Entry Provisions for the Global Notes. The Rule
144A Global Note and Regulation S Global Note initially shall (i) be registered
in the name of the Depositary or the nominee of such Depositary, (ii) be
delivered to the Trustee as custodian for the Depositary and (iii) bear legends
as set forth in Section 2.6(h).

                  Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Rule
144A Global Note or Regulation S Global Note, as the case may be, held on their
behalf by the Depositary, or the Trustee as its



                                      -38-

custodian, or under the Rule 144A Global Note or Regulation S Global Note, as
the case may be, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of Rule 144A
Global Note or Regulation S Global Note, as the case may be, for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee, from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its Agent Members, the
operation of customary practices governing the exercise of the rights of a
holder of any Note.

                  Transfers of the Rule 144A Global Note and the Regulation S
Global Note shall be limited to transfers of such Rule 144A Global Note or
Regulation S Global Note in whole, but not in part, to the Depositary, its
successors or their respective nominees. Beneficial interests in the Rule 144A
Global Note and the Regulation S Global Note may be transferred in accordance
with the applicable rules and procedures of the Depositary and the provisions of
this Section 2.6. The registration of transfer and exchange of beneficial
interests in the Global Note, which does not involve the issuance of a
Certificated Note, shall be effected through the Depositary, in accordance with
this Indenture (including the restrictions on transfer set forth herein) and the
procedures of the Depositary therefor. The Trustee shall have no responsibility
or liability for any act or omission of the Depositary.

                  At any time at the request of the beneficial holder of an
interest in the Rule 144A Global Note or Permanent Regulation S Global Note to
obtain a Certificated Note, such beneficial holder shall be entitled to obtain a
Certificated Note upon written request to the Trustee and the Note Custodian in
accordance with the standing instructions and procedures existing between the
Note Custodian and Depositary for the issuance thereof. Upon receipt of any such
request, the Trustee, or the Note Custodian at the direction of the Trustee,
will cause, in accordance with the standing instructions and procedures existing
between the Depositary and the Note Custodian, the aggregate principal amount of
the Rule 144A Global Note or Permanent Regulation S Global Note, as appropriate,
to be reduced by the principal amount of the Certificated Note issued upon such
request to such beneficial holder and, following such reduction, the Company
will execute and the Trustee will authenticate and deliver to such beneficial
holder (or its nominee) a Certificated Note or Certificated Notes in the
appropriate aggregate principal amount in the name of such beneficial holder (or
its nominee) and bearing such restrictive legends as may be required by this
Indenture.

                  (c)      Transfers to Non-QIB Institutional Accredited
Investors. The following provisions shall apply with respect to the registration
of any proposed transfer of a Transfer Restricted Security to any Institutional
Accredited Investor that is not a QIB (other than any Person that is not a U.S.
Person as defined under Regulation S, a "Foreign Person"):

                  (i)      the Registrar shall register the transfer of any
         Note, whether or not such Note bears the Private Placement Legend, if
         (x) (A) the requested transfer is at least



                                      -39-

         two years after the later of the Issue Date of the Notes and (B) the
         proposed transferee has certified to the Registrar that the requested
         transfer is at least two years after last date on which such Note was
         held by an Affiliate of the Company, or (y) the proposed transferee has
         delivered to the Registrar (A) a certificate substantially in the form
         of Exhibit E hereto and (B) such certifications, legal opinions and
         other information as the Trustee and the Company may reasonably request
         to confirm that such transaction is in compliance with the Securities
         Act; and

                  (ii)     if the proposed transferor is an Agent Member holding
         a beneficial interest in the Global Note, upon receipt by the Registrar
         of (x) the documents, if any, required by clause (i) and (y)
         instructions given in accordance with the Depositary's and the
         Registrar's procedures, the Registrar shall reflect on its books and
         records the date and a decrease in the principal amount of the Global
         Note in an amount equal to the principal amount of the beneficial
         interest in the Global Note to be transferred, and the Company shall
         execute, and the Trustee shall authenticate and deliver, one or more
         Certificated Notes of like tenor and amount.

                  (d)      Transfers to QIBs. The following provisions shall
apply with respect to the registration of any proposed transfer of a Transfer
Restricted Security to a QIB (other than Foreign Persons):

                  (i)      if the Note to be transferred consists of
         Certificated Notes or an interest in the Regulation S Global Note, the
         Registrar shall register the transfer if such transfer is being made by
         a proposed transferor who has checked the box provided for on a
         certificate substantially in the form of Exhibit D(2) stating, or has
         otherwise advised the Company and the Registrar in writing, that the
         sale has been made in compliance with the provisions of Rule 144A to a
         transferee who is a QIB within the meaning of Rule 144A and is aware
         that the sale to it is being made in reliance on Rule 144A; and

                  (ii)     if the proposed transferee is an Agent Member, and
         the Note to be transferred consists of Certificated Notes or an
         interest in the Regulation S Global Note, upon receipt by the Registrar
         of the documents referred to in clause (i) and instructions given in
         accordance with the Depositary's and the Registrar's procedures, the
         Registrar shall reflect on its books and records the date and an
         increase in the principal amount of the Rule 144A Global Note in an
         amount equal to the principal amount of the Certificated Notes or the
         interest in the Regulation S Global Note, as the case may be, to be
         transferred, and the Trustee shall cancel the Certificated Notes or
         decrease the amount of the Regulation S Global Note so transferred.

                  (e)      Transfers of Interests in the Temporary Regulation S
Global Note. The following provisions shall apply with respect to the
registration of any proposed transfer of interests in the Temporary Regulation S
Global Note:



                                      -40-

                  (i)      the Registrar shall register the transfer of an
         interest in the Temporary Regulation S Global Note if (x) the proposed
         transferor has delivered to the Registrar a certificate substantially
         in the form of Exhibit F hereto stating, among other things, that the
         proposed transferee is a Foreign Person or (y) the proposed transferee
         is a QIB and the proposed transferor has checked the box provided for
         on a certificate substantially in the form of Exhibit D(2) stating, or
         has otherwise advised the Company and the Registrar in writing, that
         the sale has been made in compliance with the provisions of Rule 144A
         to a transferee who is a QIB within the meaning of Rule 144A, and is
         aware that the sale to it is being made in reliance on Rule 144A; and

                  (ii)     if the proposed transferee is an Agent Member, upon
         receipt by the Registrar of the documents referred to in clause (i)(y)
         above and instructions given in accordance with the Depositary's and
         the Registrar's procedures, the Registrar shall reflect on its books
         and records the date and an increase in the principal amount of the
         Rule 144A Global Note in an amount equal to the principal amount of the
         Temporary Regulation S Global Note to be transferred, and the Trustee,
         as Note Custodian, shall decrease the amount of the Temporary
         Regulation S Global Note.

                  (f)      Transfers to Foreign Persons. The following
provisions shall apply with respect to any transfer of a Transfer Restricted
Security to a Foreign Person:

                  (i)      the Registrar shall register any proposed transfer of
a Note to a Foreign Person upon receipt of a certificate substantially in the
form of Exhibit F hereto from the proposed transferor and such certifications,
legal opinions and other information as the Trustee or the Company may
reasonably request; and

                  (ii)     (a) if the proposed transferor is an Agent Member
holding a beneficial interest in the Rule 144A Global Note or the Note to be
transferred consists of Certificated Notes, upon receipt by the Registrar of (x)
the documents, if any, required by paragraph (i) and (y) instructions in
accordance with the Depositary's and the Registrar's procedures, the Registrar
shall reflect on its books and records the date and a decrease in the principal
amount of the Rule 144A Global Note in an amount equal to the principal amount
of the beneficial interest in the Rule 144A Global Note or cancel the
Certificated Notes, as the case may be, to be transferred, and (b) if the
proposed transferee is an Agent Member, upon receipt by the Registrar of
instructions given in accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Regulation S Global Note in an amount
equal to the principal amount of the Certificated Notes to be transferred, and
the Trustee shall decrease the amount of the Rule 144A Global Note.

                  (g)      The Depositary. The Depositary shall be a clearing
agency registered under the Exchange Act. The Company initially appoints The
Depository Trust Company to



                                      -41-

act as Depositary with respect to the Global Note. Initially, the Rule 144A
Global Note and the Regulation S Global Note shall be issued to the Depositary,
registered in the name of Cede & Co., as the nominee of the Depositary, and
deposited with the Note Custodian for Cede & Co.

                  Notes in Certificated form issued in exchange for all or a
part of a Global Note pursuant to this Section 2.6 shall be registered in such
names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. Upon execution and authentication, the Trustee shall
deliver such Certificated Notes in Certificated form to the persons in whose
names such Notes in Certificated form are so registered.

                  Certificated Notes shall be transferred to all beneficial
owners in exchange for their beneficial interests in the Rule 144A Global Note
or the Permanent Regulation S Global Note, as the case may be, if at any time:

                  (i)      the Depositary for the Notes notifies the Company
         that the Depositary is unwilling or unable to continue as Depositary
         for the Rule 144A Global Note or the Permanent Regulation S Global
         Note, as the case may be, and a successor Depositary is not appointed
         by the Company within 90 days after delivery of such notice; or

                  (ii)     the Company, at its sole discretion, notifies the
         Trustee in writing that it elects to cause the issuance of Certificated
         Notes under this Indenture,

and the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.2 hereof, authenticate and
deliver Certificated Notes in an aggregate principal amount equal to the
principal amount of the Rule 144A Global Note or the Permanent Regulation S
Global Note, as the case may be, in exchange for such Global Notes.

                  (h)      Legends.

                  (i)      Except as permitted by the following paragraphs (ii)
and (iii), each Note certificate evidencing Global Notes and Certificated Notes
(and all Notes issued in exchange therefor or substitution thereof) shall (x) be
subject to the restrictions on transfer set forth in this Section 2.6 (including
those set forth in the legend below) unless such restrictions on transfer shall
be waived by written consent of the Company, and the Holder of each Transfer
Restricted Security, by such Holder's acceptance thereof, agrees to be bound by
all such restrictions on transfer and (y) bear the legend set forth below (the
"Private Placement Legend"):

         THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
         1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
         OFFERED OR SOLD WITHIN THE



                                      -42-

         UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
         EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
         REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
         IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON
         AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE
         WITH RULE 904 UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT
         WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE RESELL OR
         OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO DOLE FOOD COMPANY, INC. OR
         ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
         INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
         ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR (AS DEFINED
         IN RULE 501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT, AN
         "ACCREDITED INVESTOR") THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS
         FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A
         SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
         RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF
         WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS NOTE), (D)
         OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
         RULE 904 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO THE
         EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
         ACT (IF AVAILABLE), (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
         REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
         OPINION OF COUNSEL IF DOLE FOOD COMPANY, INC. SO REQUESTS), OR (G)
         PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
         ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE
         IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
         CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN TWO YEARS AFTER THE
         ORIGINAL ISSUANCE OF THIS NOTE, IF THE PROPOSED TRANSFEREE IS AN
         ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH
         TO THE TRUSTEE AND DOLE FOOD COMPANY, INC. SUCH CERTIFICATIONS, LEGAL
         OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE
         TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
         FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
         OF THE SECU-



                                      -43-

         RITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED
         STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION
         S UNDER THE SECURITIES ACT.

                  (ii)     Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a Global
Note) pursuant to Rule 144 under the Securities Act or pursuant to an effective
registration statement under the Securities Act:

                  (a)      in the case of any Transfer Restricted Security that
         is a Certificated Note, the Registrar shall permit the Holder thereof
         to exchange such Transfer Restricted Security for a Certificated Note
         that does not bear the legend set forth in (i) above and rescind any
         restriction on the transfer of such Transfer Restricted Security; and

                  (b)      in the case of any Transfer Restricted Security
         represented by a Global Note, such Transfer Restricted Security shall
         not be required to bear the legend set forth in (i) above, but shall
         continue to be subject to the provisions of Section 2.6(b) hereof;
         provided, however, that with respect to any request for an exchange of
         a Transfer Restricted Security that is represented by a Global Note for
         a Certificated Note that does not bear the legend set forth in (i)
         above, which request is made in reliance upon Rule 144, the Holder
         thereof shall certify in writing to the Registrar that such request is
         being made pursuant to Rule 144 (such certifications to be
         substantially in the form of Exhibit D(2) hereto).

                  (iii)    Notwithstanding the foregoing, upon consummation of
the Exchange Offer, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.2 hereof, the Trustee shall
authenticate Series B Notes in exchange for Series A Notes accepted for exchange
in the Exchange Offer, which Series B Notes shall not bear the legend set forth
in (i) above, and the Registrar shall rescind any restriction on the transfer of
such Series A Notes, in each case unless the Company has notified the Registrar
in writing that the Holder of such Series A Notes is either (A) a broker-dealer,
(B) a Person participating in the distribution of the Series A Notes or (C) a
Person who is an affiliate (as defined in Rule 144A) of the Company.

                  (iv)     Each Global Note, whether or not a Transfer
Restricted Security, shall also bear the following legend on the fact thereof:

         THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
         HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
         OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS NOTE IS
         NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER
         THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED



                                      -44-

         CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
         SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
         DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
         DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY
         BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
         INDENTURE.

         UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
         THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
         COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
         PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
         CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
         REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
         OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
         ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
         TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
         & CO., HAS AN INTEREST HEREIN.

                  (v)      Any Global Note may be endorsed with or have
incorporated in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Indenture as may be required by the
Note Custodian, the Depositary or by the National Association of Securities
Dealers, Inc. in order for the Notes to be tradable on the PORTAL Market or
tradable on Euroclear or Clearstream or as may be required for the Notes to be
tradable on any other market developed for trading of securities pursuant to
Rule 144A or Regulation S under the Securities Act or required to comply with
any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange or automated quotation system upon which
the Notes may be listed or traded or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Notes are subject.

                  (i)      Cancellation and/or Adjustment of Global Notes. At
such time as all beneficial interests in Global Notes have been exchanged for
Certificated Notes, redeemed, repurchased or canceled, all Global Notes shall be
returned to or retained and canceled by the Trustee in accordance with Section
2.11 hereof. At any time prior to such cancellation, if any beneficial interest
in a Global Note is exchanged for Certificated Notes, redeemed, repurchased or
canceled, the principal amount of Notes represented by such Global Notes shall
be reduced accordingly and an endorsement shall be made on such Global Note by
the Trustee or the Note Custodian, at the direction of the Trustee, to reflect
such reduction. In the event of


                                      -45-

any transfer of any beneficial interest between the Rule 144A Global Note and
the Regulation S Global Note in accordance with the standing procedures and
instructions between the Depositary and the Note Custodian and the transfer
restrictions set forth herein, the aggregate principal amount of each of the
Rule 144A Global Note and the Regulation S Global Note shall be appropriately
increased or decreased, as the case may be, and an endorsement shall be made on
each of the Rule 144A Global Note and the Regulation S Global Note by the
Trustee or the Note Custodian, at the direction of the Trustee, to reflect such
reduction or increase.

                  (j)      General Provisions Relating to Transfers and
Exchanges.

                  (i)      To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate Certificated Notes
and Global Notes at the Registrar's request.

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

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

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

                  (v)      The Company shall not be required:

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

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

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



                                      -46-

                  (vi)     Prior to due presentment of the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of all payments with respect to such Notes, and neither the
Trustee, any Agent nor the Company shall be affected by notice to the contrary.

                  (vii)    The Trustee shall authenticate Certificated Notes and
Global Notes in accordance with the provisions of Section 2.2 hereof.

Section 2.7.      Replacement Notes.

                  If any mutilated Note is surrendered to the Trustee or either
the Company or the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon receipt of an authentication order in accordance with Section 2.2 hereof,
shall authenticate a replacement Note if the Trustee's requirements for
replacement of Notes are met. If required by the Trustee or the Company, an
indemnity bond must be supplied by the Holder that is sufficient in the judgment
of the Trustee and the Company to protect the Company, the Trustee, any Agent
and any authenticating agent from any loss that any of them may suffer if a Note
is replaced. The Trustee and the Company each may charge such Holder for their
expenses in replacing such Note.

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

Section 2.8.      Outstanding Notes.

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

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

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

                  If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes pay-



                                      -47-

able on that date, then on and after that date such Notes shall be deemed to be
no longer outstanding and shall cease to accrue interest.

Section 2.9.      Treasury Notes.

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

Section 2.10.     Temporary Notes.

                  Until Certificated Notes are ready for delivery, the Company
may prepare and the Trustee, upon receipt of an authentication order in
accordance with Section 2.2 hereof, shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of Certificated Notes, but
may have such variations as the Company considers appropriate for temporary
Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate Certificated
Notes in exchange for temporary Notes.

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

Section 2.11.     Cancellation.

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

Section 2.12.     Defaulted Interest.

                  If the Company defaults in a payment of interest on the
Notes, the Company shall pay the defaulted interest in any lawful manner plus,
to the extent lawful, interest pay-


                                      -48-

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

Section 2.13.     Persons Deemed Owners.

                  Prior to due presentment of a Note for registration of
transfer and subject to Section 2.12 hereof, the Company, the Trustee, any
Paying Agent, any co-registrar and any Registrar may deem and treat the person
in whose name any Note shall be registered upon the register of Notes kept by
the Registrar as the absolute owner of such Note (whether or not such Note shall
be overdue and notwithstanding any notation of the ownership or other writing
thereon made by anyone other than the Company, any co-registrar or any
Registrar) for the purpose of receiving all payments with respect to such Note
and for all other purposes, and none of the Company, the Trustee, any Paying
Agent, any co-registrar or any Registrar shall be affected by any notice to the
contrary.

Section 2.14.     CUSIP Numbers.

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

                                  ARTICLE III.

                            REDEMPTION AND REPURCHASE

Section 3.1.      Notices to Trustee.

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



                                      -49-

redemption shall occur, the Redemption Date, the principal amount of Notes to be
redeemed and the Redemption Price.

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

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

Section 3.2.      Selection of Notes.

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

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

                  The Trustee shall promptly notify the Company in writing of
the Notes or portions thereof selected for redemption or repurchase and, in the
case of any Note selected for partial redemption or repurchase, the principal
amount thereof to be redeemed or repurchased. Notes and portions thereof
selected shall be in amounts of $1,000 or integral multiples of $1,000; except
that if all of the Notes of a Holder are to be redeemed, the entire outstanding



                                      -50-

amount of Notes held by such Holder, even if not a multiple of $1,000, shall be
redeemed. No Notes of a principal amount of $1,000 or less shall be redeemed in
part.

Section 3.3.      Notice of Optional or Special Redemption.

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

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

                  (a)      the Redemption Date;

                  (b)      the Redemption Price;

                  (c)      if any Note is being redeemed in part, the portion of
         the principal amount of such Note to be redeemed and that, after the
         Redemption Date, upon surrender of such Note, a new Note or Notes in
         principal amount equal to the unredeemed portion will be issued;

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

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

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

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



                                      -51-

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

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

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

Section 3.4.      Effect of Notice of Redemption.

                  Once notice of redemption is mailed, Notes or portions thereof
called for redemption become due and payable on the Redemption Date at the
Redemption Price. Upon surrender to any Paying Agent, such Notes or portions
thereof shall be paid at the Redemption Price, plus Additional Interest, if any,
and accrued interest to the Redemption Date; provided, however, that
installments of interest which are due and payable on or prior to the Redemption
Date shall be payable to the Holders of such Notes, registered as such, at the
close of business on the relevant record date for the payment of such
installment of interest.

Section 3.5.      Deposit of Redemption Price or Purchase Price.

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

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



                                      -52-

Section 3.6.      Notes Redeemed or Repurchased in Part.

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

Section 3.7.      Optional Redemption.

                  The Company may redeem any or all of the Notes at any time on
or after March 15, 2007 at the Redemption Prices set forth in the Notes (an
"Optional Redemption"). Any redemption pursuant to this Section 3.7 shall be
made pursuant to the provisions of Sections 3.1 through 3.6 hereof.

Section 3.8.      Optional Redemption Upon Equity Offerings.

                  In the event the Company completes one or more Equity
Offerings on or before March 15, 2006, the Company, at its option, may use the
net cash proceeds from any such Equity Offering to redeem up to 35% of the
original principal amount of the Notes (a "Special Redemption") at a Redemption
Price of 108.875% of the principal amount thereof, together with accrued and
unpaid interest and Additional Interest, if any, to the date of redemption,
provided, however, that at least 65% of the original principal amount of the
Notes initially issued under this Indenture will remain outstanding immediately
after each such Special Redemption; and provided, further, that such Special
Redemption shall occur within 90 days after the date of the closing of the
applicable Equity Offering. Any redemption pursuant to this Section 3.8 shall be
made pursuant to the provisions of Sections 3.1 through 3.6 hereof.

Section 3.9.      Repurchase upon Change of Control Offer.

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

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



                                      -53-

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

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

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

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

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

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

                  (e)      that Holders electing to have any Notes purchased
         pursuant to the Change of Control Offer will be required to tender the
         Notes, with the form entitled "Option of Holder To Elect Purchase" on
         the reverse of the Notes completed, or trans-



                                      -54-

         fer by book-entry transfer, to the Company, a Depositary, if appointed
         by the Company, or a Paying Agent at the address specified in the
         notice not later than the third Business Day preceding the Purchase
         Date;

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

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

                  On or before the Purchase Date, the Company shall to the
extent lawful, (i) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (ii) deposit with the Paying
Agent an amount equal to the Purchase Price, together with accrued and unpaid
interest and Additional Interest, if any, thereon to the Purchase Date in
respect of all Notes or portions thereof so tendered and accepted for repurchase
and (iii) deliver or cause to be delivered to the Trustee the Notes so accepted
together with an Officers' Certificate stating the aggregate principal amount of
Notes or portions thereof being repurchased by the Company. The Paying Agent
shall promptly (but in any case not later than five days after the Purchase
Date) mail to each Holder of Notes so repurchased the amount due in connection
with such Notes, and the Company shall promptly issue a new Note, and the
Trustee, upon written request from the Company in the form of an Officers'
Certificate shall authenticate and mail or deliver (or cause to transfer by book
entry) to each relevant Holder a new Note, in a principal amount equal to any
unpurchased portion of the Notes surrendered to the Holder thereof; provided,
that each such new Note shall be in a principal amount of $l,000 or and integral
multiple thereof. The Company shall publicly announce the results of the Change
of Control Offer on or as soon as practicable after the Purchase Date.

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



                                     -55-

Section 3.10.     Repurchase upon Application of Excess Proceeds.

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

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

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

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

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

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

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

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



                                      -56-

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

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

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

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



                                      -57-

                                   ARTICLE IV.

                                    COVENANTS

Section 4.1.      Payment of Principal and Interest.

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

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

Section 4.2.      Maintenance of Office or Agency.

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

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



                                      -58-

                  The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.3. The Trustee may resign such agency at any time by giving written
notice to the Company no later than 30 days prior to the effective date of such
resignation.

Section 4.3.      Reports.

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

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

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

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

Section 4.4.      Compliance Certificate.

                  The Company and each Guarantor shall deliver to the Trustee,
within 120 days after the end of each fiscal year, an Officers' Certificate
further stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture in all ma-



                                      -59-

terial respects, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture in all material respects and is not in Default in the performance or
observance of any of the terms, provisions and conditions of this Indenture
(and, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default) of which he or she may have knowledge, and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which, payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event.

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

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

Section 4.5.      Taxes.

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

Section 4.6.      Stay, Extension and Usury Laws.

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



                                      -60-

the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though such law has not been
enacted.

Section 4.7.      Limitation on Restricted Payments.

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

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

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

                  (3)      make any principal payment on, purchase, defease,
         redeem, prepay, decrease or otherwise acquire or retire for value,
         prior to any scheduled final maturity, scheduled redemption or
         repayment or scheduled sinking fund payment, any Subordinated
         Indebtedness (other than intercompany Indebtedness among the Company
         and/or the Guarantors which Indebtedness was permitted to be incurred
         pursuant to clause (6) or (7) of the definition of "Permitted
         Indebtedness"); or

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

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

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

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

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



                                      -61-

                  (v)      50% of the cumulative Consolidated Net Income (or if
         cumulative Consolidated Net Income shall be a loss, minus 100% of such
         loss) of the Company earned during the period commencing on and
         including March 23, 2003 and ending on the last day of the most recent
         fiscal quarter for which financial information is available to the
         Company (treating such period as a single accounting period); plus

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

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

                  (y)      without duplication, the sum of:

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

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

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



                                      -62-

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

                           (z)      $35.0 million.

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

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

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

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

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

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



                                      -63-

         Capital Stock of the Company, all other costs incurred by Holdings
         relating to Holdings' ownership of the Capital Stock of the Company;

                  (6)      payments by the Company to Holdings to pay (x) any
         taxes, charges or assessments (other than federal, state and local
         income taxes and withholding imposed on payments made by Holdings)
         required to be paid by Holdings by virtue of its being incorporated or
         having capital stock outstanding (but not by virtue of owning stock or
         other equity interests of any corporation other than the Company or any
         of its Subsidiaries), or being a holding company parent of the Company
         or receiving actual or, in the case of Subsidiaries of the Company,
         deemed dividends from or other distributions in respect of the stock of
         the Company or any of its Subsidiaries, or having guaranteed any
         obligations of the Company or any Subsidiary, or having made any
         payment in respect of any of the items for which the Company is
         permitted to make payments to Holdings pursuant to this covenant or (y)
         any other federal, state, foreign, provincial or local taxes for which
         Holdings is liable up to an amount not to exceed with respect to any
         such taxes the total amount of such taxes which the Company would have
         been required to pay on a separate company basis or on a consolidated
         basis if the Company had filed a consolidated return on behalf of an
         affiliated group (as defined in Section 1504 of the Internal Revenue
         Code of 1986, as amended, or an analogous provision of state, local or
         foreign law) of which it were the common parent, or with respect to
         state and local taxes, on a combined basis if the Company had filed a
         combined return on behalf of an affiliated group of which it were a
         member;

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

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

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

                  (10)     payments made to the holders of Capital Stock in any
         Person that is merged or consolidated with or into the Company or any
         Restricted Subsidiary pursuant to any merger, consolidation or sale of
         assets effected in accordance with Section 5.1 hereof; provided,
         however, that no such payment may be made pursuant to this



                                      -64-

         clause (10) unless, after giving pro forma effect to such transaction,
         and the incurrence of any Indebtedness in connection with such
         transaction and the use of the proceeds from such transaction, the
         Company would be able to incur $1.00 of additional Indebtedness under
         paragraph (a) of Section 4.9 hereof.

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

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

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

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

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

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

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

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

                  (b)      this Indenture, the Notes, the Guarantees and the
         Existing Notes and related guarantees;

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

                  (d)      any agreement or instrument governing Acquired
         Indebtedness, which encumbrance or restriction is not applicable to any
         Person, or the properties or assets of any Person, other than the
         Person or the properties or assets of the Person so acquired;



                                      -65-

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

                  (f)      the Credit Agreement;

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

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

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

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

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

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

                  (m)      Liens securing Indebtedness otherwise permitted to be
         incurred under Sections 4.12 and 4.23(a) hereof (including Permitted
         Liens) that limit the right of the debtor to dispose of the assets
         subject to such Liens; and

                  (n)      an agreement governing Indebtedness incurred to
         Refinance the Indebtedness issued, assumed or incurred pursuant to an
         agreement referred to in clauses (b), (d), (e) and (g) through (m)
         above; provided, however, that the provisions relating to such
         encumbrance or restriction contained in any such Indebtedness are not
         in the ag-



                                      -66-

         gregate materially less favorable to the Company as determined by the
         Board of Directors of the Company in their reasonable and good faith
         judgment than the provisions relating to such encumbrance or
         restriction contained in agreements referred to in such clauses (b),
         (d), (e) and (g) through (m).

Section 4.9.      Limitation on Incurrence of Additional Indebtedness.

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

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

Section 4.10.     Limitation on Asset Sales.

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

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

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

                           (a)      the amount of any liabilities (as shown on
                  the Company's or such Restricted Subsidiary's most recent
                  balance sheet) of the Company or any



                                      -67-

                  such Restricted Subsidiary (other than liabilities that are by
                  their terms subordinated in right of payment to the Notes or
                  any Guarantee of a Guarantor) that are assumed by the
                  transferee of any such assets, and

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

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

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

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

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

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

                  (B)      Pending the final application of such Net Cash
Proceeds, the Company may temporarily reduce borrowings under the Credit
Agreement or any other revolving credit facility, if any. On the 366th day after
an Asset Sale or such earlier date, if any, as the Board of Directors of the
Company or of such Restricted Subsidiary determines not to apply the Net Cash
Proceeds relating to such Asset Sale as set forth in clauses (3)(a), (3)(b) and
(3)(c) of paragraph (A) above or, in the event that a definitive agreement has
been entered into prior to such 366th day pursuant to which the Net Cash
Proceeds are to be applied, on the later of the 366th day and the 121st day
after the execution of such agreement (each, a "Net Proceeds Offer Trigger
Date"), such aggregate amount of Net Cash Proceeds which have not been applied
on or before such Net Proceeds Offer Trigger Date as permitted in clauses
(3)(a), (3)(b) and (3)(c) of the preceding paragraph (each a "Net Proceeds Offer
Amount") shall be applied by



                                      -68-

the Company or such Restricted Subsidiary to make an offer to purchase (the "Net
Proceeds Offer") to all Holders and, to the extent required by the terms of any
Pari Passu Debt, an offer to purchase to all holders of such Pari Passu Debt, on
a date (the "Net Proceeds Offer Payment Date") not less than 30 nor more than 60
days following the applicable Net Proceeds Offer Trigger Date, from all Holders
(and holders of any such Pari Passu Debt) on a pro rata basis, that amount of
Notes (and Pari Passu Debt) equal to the Net Proceeds Offer Amount at a price
equal to 100% of the principal amount of the Notes (and Pari Passu Debt) to be
purchased, plus accrued and unpaid interest thereon, if any, to the date of
purchase.

                  (C)      If at any time any non-cash consideration received by
the Company or any Restricted Subsidiary of the Company, as the case may be, in
connection with any Asset Sale is converted into or sold or otherwise disposed
of for cash (other than interest received with respect to any such non-cash
consideration), then such conversion or disposition shall be deemed to
constitute an Asset Sale hereunder as of the date of such conversion or
disposition and the Net Cash Proceeds thereof shall be applied in accordance
with this Section 4.10.

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

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

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

                  (G)      In the event the Company or any of its Restricted
Subsidiaries consummate a single Asset Sale for which the Company or its
Restricted Subsidiaries receive aggregate consideration at the time of such
Asset Sale in excess of $100.0 million, the Company or such Restricted
Subsidiary, as the case may be, shall, prior to the consummation thereof, obtain
a favorable opinion as to the fairness of such Asset Sale to the Company or the
relevant



                                      -69-

Restricted Subsidiary, as the case may be, from a financial point of
view, from an Independent Financial Advisor and file the same with the Trustee.

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

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

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

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

Section 4.11.     Limitations on Transactions with Affiliates.

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

                  All Affiliate Transactions (and each series of related
Affiliate Transactions which are similar or part of a common plan) involving
aggregate payments with a fair market value in excess of $7.5 million shall be
approved by the Board of Directors of the Company or such Restricted Subsidiary,
as the case may be, such approval to be evidenced by a Board Resolution stating
that such Board of Directors has determined that such transaction complies with
the foregoing provisions. If the Company or any Restricted Subsidiary of the
Company enters into an Affiliate Transaction (or a series of related Affiliate
Transactions related to a



                                      -70-

common plan) that involves an aggregate fair market value of more than $20.0
million, the Company or such Restricted Subsidiary, as the case may be, shall,
prior to the consummation thereof, obtain a favorable opinion as to the fairness
of such transaction or series of related transactions to the Company or the
relevant Restricted Subsidiary, as the case may be, from a financial point of
view, from an Independent Financial Advisor and file the same with the Trustee.

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

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

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

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

                  (4)      payments and Investments permitted by this Indenture;

                  (5)      the payment of fees and expenses incurred in
         connection with the consummation of the transactions being consummated
         on the Issue Date;

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

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

                  (8)      transactions with customers, clients, vendors,
         suppliers or other purchasers or sellers of goods or services, in each
         case in the ordinary course of business



                                      -71-

         (including, without limitation, pursuant to joint venture agreements)
         and otherwise in compliance with the terms of this Indenture;

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

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

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

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

                  (13)     payments made pursuant to the following conditions:
         if the Company is to file consolidated federal income tax returns with
         Holdings or combined or unitary state income tax returns with Holdings,
         the Company may enter into a tax sharing agreement with Holdings and
         may pay to Holdings amounts when due and payable pursuant to such tax
         sharing agreement in respect of amounts of tax due with respect to such
         consolidated, combined or unitary returns and any additional taxes due
         from time to time as a result of any audit thereof, as the case may be,
         in each case in an amount not to exceed the amount of tax that the
         Company would have been obligated to pay to the appropriate taxing
         authority if the Company and its Subsidiaries had filed a hypothetical
         separate consolidated, combined or unitary return for the then current
         year and all prior years ending after the Issue Date.

Section 4.12.     Limitation on Liens.

                  This Section 4.12 will apply to the Notes after the Existing
Notes no longer remain outstanding or in the event that the requisite consents
from the holders of Existing Notes have been received to have the obligations of
the Company released with respect to the sections described in the Existing
Notes Indenture comparable to Sections 4.23(a) and 4.23(b) hereof. In addition,
this Section 4.12 shall apply to the Notes if the comparable provisions under
Sections 4.23(a) and 4.23(b) hereof are no longer applicable as a result of
defeasance under the terms of the Existing Notes Indenture.

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



                                      -72-

the Issue Date, or any proceeds therefrom, or assign or otherwise convey any
right to receive income or profits therefrom unless:

                  (1)      in the case of Liens securing Subordinated
         Indebtedness, the Notes or the Guarantee of such Guarantor, as the case
         may be, are secured by a Lien on such property, assets or proceeds that
         is senior in priority to such Liens; and

                  (2)      in all other cases, the Notes or the Guarantee of
         such Guarantor, as the case may be, are equally and ratably secured by
         a Lien on such property, assets, proceeds, income or profits.

Section 4.13.     Continued Existence.

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

Section 4.14.     Insurance Matters.

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

Section 4.15.     Offer to Repurchase upon Change of Control.

                  Upon the occurrence of a Change of Control, each Holder of
Notes shall have the right to require the Company to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of such Holder's Notes (a
"Change of Control Offer") at a Purchase Price in cash equal to 101% of the
aggregate principal amount thereof, together with accrued and un-



                                      -73-

paid interest and Additional Interest, if any, thereon to the Purchase Date. The
Change of Control Offer shall be made in compliance with the applicable
procedures set forth in Article III hereof and shall include all instructions
and materials necessary to enable Holders to tender their Notes.

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

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

Section 4.16.     Additional Subsidiary Guarantees.

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

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

                  (2)      deliver to the Trustee an opinion of counsel that
         such supplemental indenture has been duly authorized, executed and
         delivered by such Restricted Subsidiary and constitutes a legal, valid,
         binding and enforceable obligation of such Restricted Subsidiary.



                                      -74-

Thereafter, such Restricted Subsidiary shall be a Guarantor for all purposes of
this Indenture (until released from its Guarantee in accordance with the terms
of this Indenture).

Section 4.17.     Conduct of Business.

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

Section 4.18.     Payments for Consent.

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

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

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

Section 4.20.     Prohibition on Incurrence of Senior Subordinated Guarantees.

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

Section 4.21.     Limitation of Guarantees by Restricted Subsidiaries.

                  The Company will not permit any Restricted Subsidiary that is
not a Guarantor, directly or indirectly, by way of the pledge of any
intercompany note or otherwise, to assume, guarantee or in any other manner
become liable with respect to any Indebtedness of the Company or any other
Restricted Subsidiary of the Company (other than: (1) Indebtedness or other
obligations under the Credit Agreement; (2) Permitted Indebtedness of a
Restricted



                                      -75-

Subsidiary of the Company; (3) Indebtedness under Currency Agreements in
reliance on clause (5) of the definition of Permitted Indebtedness; or (4)
Interest Swap Obligations incurred in reliance on clause (4) of the definition
of Permitted Indebtedness), unless, in any such case, such Restricted Subsidiary
executes and delivers a supplemental indenture to this Indenture providing a
senior subordinated guarantee of payment of the Notes by such Restricted
Subsidiary. Notwithstanding the foregoing, any such Guarantee by a Restricted
Subsidiary of the Notes shall provide by its terms that it shall be
automatically and unconditionally released and discharged, without any further
action required on the part of the Trustee or any Holder, upon: the
unconditional release of such Restricted Subsidiary from its liability in
respect of the Indebtedness in connection with which such Guarantee was executed
and delivered pursuant to this paragraph; if the Company designates any
Restricted Subsidiary that is a Guarantor to be an Unrestricted Subsidiary in
accordance with the applicable provisions of this Indenture; or any sale or
other disposition (by merger or otherwise) to any Person which is not a
Restricted Subsidiary of the Company of all of the Company's Capital Stock in,
or all or substantially all of the assets of, such Restricted Subsidiary;
provided that (a) such sale or disposition of such Capital Stock or assets is
otherwise in compliance with the terms of this Indenture and (b) such
assumption, guarantee or other liability of such Restricted Subsidiary has been
released by the holders of the other Indebtedness so guaranteed.

Section 4.22.     Capital Call Agreement.

                  The Company shall have received the net cash proceeds from the
equity contribution or purchase of its Capital Stock, as the case may be, to the
extent required by, and upon the terms of, Section 2 (only to the extent such
Section relates to the consolidated leverage ratio (as defined therein)
requirement with respect to the four full fiscal quarter period commencing on
March 23, 2003) of the Capital Call Agreement as in effect on the Issue Date and
shall use such net cash proceeds to repay Indebtedness and/or purchase
subordinated participations in obligations under the Credit Agreement, in each
case, in compliance with the Capital Call Agreement as in effect on the Issue
Date.

Section 4.23.     Existing Notes Covenants.

                  This Section 4.23 will apply to the Notes at all times so long
as the Existing Notes remain outstanding or in the event that the requisite
consents from the holders of the Existing Notes have not been received to have
the obligations of the Company released with respect to the sections described
in the Existing Notes Indenture comparable to Sections 4.23(a) and 4.23(b)
hereof. Notwithstanding the foregoing, this Section 4.23 shall not apply to the
Notes if the comparable covenants in the Existing Notes Indenture are no longer
applicable as a result of defeasance under the terms of the Existing Notes
Indenture.

                  (a)      Limitation Upon Liens. The Company will not itself,
         and will not permit any Restricted Subsidiary to, directly or
         indirectly, create, incur, issue, assume, guarantee or otherwise become
         liable for or suffer to exist any Indebtedness secured



                                      -76-

         by a Lien on (i) any Principal Property of the Company or any
         Restricted Subsidiary or (ii) any shares of capital stock or
         Indebtedness of any Restricted Subsidiary (which Indebtedness is then
         held by the Company or any Restricted Subsidiary), without effectively
         providing that the Notes (together with, if the Company shall so
         determine, any other Indebtedness of the Company or such Restricted
         Subsidiary then existing or thereafter created which is not
         Subordinated Funded Debt) shall be secured equally and ratably with
         (or, at the option of the Company, prior to) such secured Indebtedness,
         so long as such secured Indebtedness shall be so secured, unless
         immediately thereafter, after giving effect thereto, the aggregate
         amount of all such secured Indebtedness plus all Attributable Debt of
         the Company and its Restricted Subsidiaries in respect of Sale and
         Leaseback Transactions (but excluding leases exempt from the
         prohibition of clauses (2) through (6) of Section 4.23(b) hereof) would
         not exceed 10% of Net Tangible Assets; provided, however, that this
         Section 4.23(a) shall not apply to, and there shall be excluded from
         secured Indebtedness in any computation under this Section 4.23(a),
         Indebtedness secured by:

                  (1)      Liens on, and limited to, property of or shares of
         capital stock or Indebtedness of any corporation existing at April 30,
         2002 or at the time such corporation becomes a Restricted Subsidiary;

                  (2)      Liens in favor of the Company or any Restricted
         Subsidiary;

                  (3)      Liens in favor of any governmental body to secure
         progress, advance or other payments pursuant to any contract or
         provision of any statute;

                  (4)      (i) if made in the ordinary course of business, any
         Lien as security for the performance of any contract or undertaking not
         directly or indirectly in connection with the borrowing of money or the
         securing of Indebtedness, or (ii) any Lien with any governmental agency
         required or permitted to qualify the Company or any Restricted
         Subsidiary to conduct business, to maintain self-insurance or to obtain
         the benefits of any law pertaining to workmen's compensation,
         employment insurance, old age pensions, social security or similar
         matters;

                  (5)      Liens for taxes, assessment or governmental charges
         or levies if such taxes, assessments, governmental charges or levies
         shall not at the time be due and payable, or if the same thereafter can
         be paid without penalty, or if the same are being contested in good
         faith by appropriate proceedings;

                  (6)      Liens created by or resulting from any litigation or
         legal proceeding which at the time is currently being contested in good
         faith by appropriate proceedings, or Liens arising out of judgments or
         awards as to which the time for prosecuting an appeal or proceeding for
         review has not expired;



                                      -77-

                  (7)      Liens on, and limited to, property (including
         leasehold estates) or shares of capital stock or Indebtedness, existing
         at the time of acquisition thereof (including acquisition through
         merger or consolidation) or to secure the payment of all or any part of
         the purchase price thereof or construction thereon or to secure any
         Indebtedness incurred prior to, at the time of, or within 120 days
         after the latest of the acquisition, the completion of construction or
         the commencement of full operation of such property for the purpose of
         financing all or any part of the purchase price thereof or construction
         thereon;

                  (8)      Liens securing obligations issued by a state,
         territory or possession of the United States, or any political
         subdivision of any of the foregoing, or the District of Columbia, to
         finance the acquisition or construction or development of property, and
         on which the interest is not, in the opinion of tax counsel of
         recognized standing or in accordance with a ruling issued by the
         Internal Revenue Service, includible (in whole or in part) in gross
         income of the holder by reason of Section 103(a)(1) of the Internal
         Revenue Code (or any successor to such provision) as in effect at the
         time of the issuance of such obligations;

                  (9)      Liens created in connection with a project financed
         with, and created to secure, a Nonrecourse Obligation; or

                  (10)     any extension, renewal or replacement (or successive
         extensions, renewals or replacements), as a whole or in part, of any
         Lien referred to in the foregoing clauses (1) through (9), to the
         extent the Indebtedness secured by such Lien is not increased from the
         amount originally so secured, provided that such extension, renewal or
         replacement Lien shall be limited to all or a part of the same property
         or shares of capital stock or Indebtedness that secured the Lien
         extended, renewed or replaced (plus improvements on such property).

         (b)      Limitation Upon Sale and Leaseback Transactions. Except as
hereinafter provided, the Company will not itself, and will not permit any
Restricted Subsidiary to, enter into any Sale and Leaseback Transaction;
provided, however, that this Section 4.23(b) shall not apply to any Sale and
Leaseback Transaction if:

                  (1)      the Company or such Restricted Subsidiary could
         create Indebtedness secured by a Lien pursuant to Section 4.23(a)
         hereof, excluding from secured Indebtedness in any computation under
         Section 4.23(a) hereof Indebtedness secured by Liens of the type
         described in clauses (1) through (10) thereof, on the Principal
         Property to be leased in an amount equal to the Attributable Debt with
         respect to such Sale and Leaseback Transaction without equally and
         ratably securing the Existing Notes and the Notes, or



                                      -78-

                  (2)      the Company or a Restricted Subsidiary, within 180
         days after the sale or transfer shall have been made by the Company or
         by a Restricted Subsidiary, applies an amount equal to the greater of
         the net proceeds from the sale of the Principal Property leased
         pursuant to such arrangement or the fair market value of the Principal
         Property so leased at the time of entering into such arrangement (as
         determined in any manner approved by the applicable Board of Directors)
         to either (x) the retirement of Senior Funded Debt of the Company or
         Funded Debt of a Restricted Subsidiary; provided, however, that
         notwithstanding the foregoing, no retirement referred to in this clause
         (2) may be effected by payment at maturity or pursuant to any mandatory
         sinking fund payment or any mandatory prepayment provision, or (y) the
         purchase of other property which will constitute Principal Property of
         the Company or its Restricted Subsidiaries having a fair market value,
         in the opinion of the Board of Directors of the Company, at least equal
         to the fair market value of the Principal Property leased in such Sale
         and Leaseback Transaction, or

                  (3)      the lease in such Sale and Leaseback Transaction is
         for a period, including renewals, of no more than three years, or

                  (4)      the lease in such Sale and Leaseback Transaction
         secures or relates to obligations issued by a state, territory or
         possession of the United States, or any political subdivision of any of
         the foregoing, or the District of Columbia, to finance the acquisition
         or construction of property, and on which the interest is not, in the
         opinion of tax counsel of recognized standing or in accordance with a
         ruling issued by the Internal Revenue Service, includible (in whole or
         in part) in gross income of the holder by reason of Section 103(a)(1)
         of the Internal Revenue Code (or any successor to such provision) as in
         effect at the time of the issuance of such obligations, or

                  (5)      the lease payment obligation is created in connection
         with a project financed with, and such obligation constitutes, a
         Nonrecourse Obligation, or

                  (6)      such arrangement is between the Company and a
         Restricted Subsidiary or between Restricted Subsidiaries.

                  For purposes of this Section 4.23, the following terms have
the following meanings:

                  "Attributable Debt" means, as to any particular lease under
which the Company or any Restricted Subsidiary is at the time liable and at any
date as of which the amount thereof is to be determined, the total net amount of
rent required to be paid under that lease during its remaining term (including
any period for which the lease has been extended or may,



                                      -79-

at the option of the lessor, be extended), discounted from the respective due
dates thereof to such date at a rate per year equal to the weighted average
interest rate per year borne by the Existing Notes compounded semiannually. The
net amount of rent required to be paid under any such lease for any such period
shall be the aggregate amount of the rent payable by the lessee with respect to
that period after excluding amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water rates and similar
charges. In the case of any lease which is terminable by the lessee upon the
payment of a penalty, the net amount shall also include the amount of the
penalty, but no rent shall be considered as required to be paid under the lease
subsequent to the first date upon which it may be so terminated.

                  "Funded Debt" means (i) all Indebtedness of the Company and
the Restricted Subsidiaries maturing on, or renewable or extendible at the
option of the obligor to, a date more than one year from the date of the
determination thereof that is or would be classified as long-term debt on a
balance sheet prepared in accordance with generally accepted accounting
principles (including Indebtedness under any revolving credit arrangement with
banks), (ii) guarantees, direct or indirect, and other contingent obligations of
the Company and the Restricted Subsidiaries in respect of, or to purchase or
otherwise acquire or be responsible or liable for (through the investment of
funds or otherwise) any Indebtedness of others (but not including contingent
liabilities on customers' receivables sold with recourse) and (iii) amendments,
renewals, extensions and refundings of any such Indebtedness.

                  "Indebtedness" means, with respect to any Person, every
obligation of such Person for money borrowed or evidenced by bonds, debentures,
notes or other similar instruments, whether or not for money borrowed or given
in connection with the acquisition of any business, properties or assets,
including securities.

                  "Lien" means, with respect to any property or assets, any
mortgage, pledge, security interest, lien, conditional sale or other title
retention agreement or other similar encumbrance.

                  "Net Tangible Assets" means the net book value of all assets
of the Company and the Restricted Subsidiaries, excluding any amount carried as
assets for shares of capital stock held in treasury, debt discount and expense,
investments in and advances to Subsidiaries other than Restricted Subsidiaries,
goodwill, patents and trademarks, less all liabilities of the Company and of the
Restricted Subsidiaries (except Funded Debt, minority interests in Restricted
Subsidiaries, deferred taxes and general contingency reserves of the Company and
of the Restricted Subsidiaries), all as determined on a consolidated basis in
accordance with generally accepted accounting principles.

                  "Nonrecourse Obligation" means indebtedness or lease payment
obligations substantially related to (i) the acquisition of assets not
previously owned by the Company or any of the Company's Restricted Subsidiaries
or (ii) the financing of a project involving the



                                      -80-

development or expansion of the Company's properties or any properties of the
Restricted Subsidiaries, as to which the obligee with respect to such
indebtedness or obligation has no recourse to the Company's general corporate
funds or the general corporate funds of any of the Restricted Subsidiaries or
any of the Company's assets or any assets of the Restricted Subsidiaries other
than the assets that were acquired with the proceeds of such transaction or the
project financed with the proceeds of such transaction (and funds generated by
such assets or project) except pursuant to a covenant to pay to such obligee or
to the obligor of such indebtedness or obligation an amount equal to all or a
portion of the amount of any dividends received from such obligor within the
previous twelve months.

                  "Principal Property" means any manufacturing plant or
processing facility, including the equipment constituting a part thereof, which
is located within the United States or its territories or possessions, of the
Company or a Restricted Subsidiary having a net book value exceeding 1% of Net
Tangible Assets.

                  "Restricted Subsidiary" means any Subsidiary of the Company,
other than any Subsidiary that is engaged primarily in the management,
development and sale or financing of real property.

                  "Sale and Leaseback Transaction" of any Person means an
arrangement with any bank, insurance company or other lender or investor, or to
which any such bank, company, lender or investor is a party, providing for the
leasing by the Company or any Restricted Subsidiary of any Principal Property
that has been or is to be sold or transferred more than 180 days after the
latest of the acquisition, completion of construction or commencement of full
operation by the Company or any Restricted Subsidiary to such bank, insurance
company, lender or investor, or to any Person to whom funds have been or are to
be advanced by such bank, insurance company, lender or investor on the security
of such Principal Property.

                  "Senior Funded Debt" means all Funded Debt except Subordinated
Funded Debt.

                  "Subordinated Funded Debt" means any of the Company's
unsecured Funded Debt that is expressly made subordinate and junior in rank and
right of payment to the Existing Notes and the Notes in the event of any
insolvency or bankruptcy proceedings, and any receivership, liquidation,
reorganization or other similar proceedings relative to the Company or the
Company's creditors, as such, or to the Company's property, or in the event of
any proceedings for the Company's voluntary liquidation, dissolution or other
winding up, whether or not involving insolvency or bankruptcy.

                  "Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock that ordinarily has voting power for the election of di-



                                      -81-

rectors, whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.

                                   ARTICLE V.

                                   SUCCESSORS

Section 5.1.      Merger, Consolidation and Sale of Assets.

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

                  (1)      either:

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

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

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

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

                  (2)      immediately after giving effect to such transaction
         and the assumption contemplated by clause (1)(b)(y) above (including
         giving effect to any Indebtedness and Acquired Indebtedness incurred or
         anticipated to be incurred in connection with or in respect of such
         transaction), the Company or such Surviving Entity, as the case may


                                      -82-

         be, (a) shall have a Consolidated Net Worth equal to or greater than
         the Consolidated Net Worth of the Company immediately prior to such
         transaction and (b) shall be able to incur at least $1.00 of additional
         Indebtedness (other than Permitted Indebtedness) pursuant to paragraph
         (a) of Section 4.9 hereof;

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

                  (4)      the Company or the Surviving Entity shall have
         delivered to the Trustee an officers' certificate and an opinion of
         counsel, each stating that such consolidation, merger, sale,
         assignment, transfer, lease, conveyance or other disposition and, if a
         supplemental indenture is required in connection with such transaction,
         such supplemental indenture comply with the applicable provisions of
         this Indenture and that all conditions precedent in this Indenture
         relating to such transaction have been satisfied.

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

                  Notwithstanding clauses (1), (2) and (3) of the first
paragraph of this Section 5.1, the Company may merge with an Affiliate that is a
Person that has no material assets or liabilities and which was organized solely
for the purpose of reorganizing the Company in another jurisdiction.

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

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

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



                                      -83-

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

                  (4)      immediately after giving effect to such transaction
         and the use of any net proceeds therefrom on a pro forma basis, the
         Company could satisfy the provisions of clause (2) of the first
         paragraph of this Section 5.1.

                  Any merger or consolidation of a Restricted Subsidiary with
and into the Company (with the Company being the Surviving Entity) or another
Guarantor need only comply with clause (4) of the first paragraph, or clause (1)
of the fifth paragraph, as the case may be, of this Section 5.1.

Section 5.2.      Successor Corporation Substituted.

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

                                  ARTICLE VI.

                              DEFAULTS AND REMEDIES

Section 6.1.      Events of Default.

                  Each of the following constitutes an "Event of Default":

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

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

                  (c)      a default in the observance or performance of any
         other covenant or agreement contained in this Indenture, which default
         continues for a period of 45 days



                                      -84-

         after the Company receives written notice specifying the default (and
         demanding that such default be remedied) from the Trustee or the
         Holders of at least 25% of the outstanding principal amount of the
         Notes (except in the case of a default with respect to Section 5.1
         hereof, which will constitute an Event of Default with such notice
         requirement but without such passage of time requirement);

                  (d)      the failure to pay at final maturity (giving effect
         to any applicable grace periods and any extensions thereof) the stated
         principal amount of any Indebtedness of the Company or any Restricted
         Subsidiary of the Company, or the acceleration of the final stated
         maturity of any such Indebtedness (which acceleration is not rescinded,
         annulled or otherwise cured within 30 days of receipt by the Company or
         such Restricted Subsidiary of notice of any such acceleration) if the
         aggregate principal amount of such Indebtedness, together with the
         principal amount of any other such Indebtedness in default for failure
         to pay principal at final stated maturity or which has been accelerated
         (in each case with respect to which the 30-day period described above
         has elapsed), aggregates $25.0 million or more at any time; provided
         that if such failure to pay shall be remedied, waived or extended
         within 30 days of receipt by the Company or such Restricted Subsidiary
         of notice of such acceleration, then any Default or Event of Default
         hereunder shall be deemed likewise to be remedied, waived or extended
         without further action by the Company;

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

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

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

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



                                      -85-

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

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

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

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

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

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

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

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

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

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

Section 6.2.      Acceleration.

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



                                      -86-

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

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

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

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

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

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

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

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

Section 6.3.      Other Remedies.

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

                  The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding, and
any recovery or judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and



                                      -87-

advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Notes. A delay or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by law.

Section 6.4.      Waiver of Past Defaults.

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

Section 6.5.      Control by Majority.

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

Section 6.6.      Limitation on Suits.

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

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

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

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

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



                                      -88-

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

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

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

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

Section 6.8.      Collection Suit by Trustee.

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

Section 6.9.      Notice.

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

Section 6.10.     Trustee May File Proofs of Claim.

                  The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents (including
accountants, experts or such other processionals as the Trustee deems necessary,
advisable or appropriate) and counsel and the Holders of the Notes allowed in
any judicial proceedings relative to the Company (or any other obligor upon the
Notes), its creditors or its property and shall be entitled and empowered to
collect, receive and



                                      -89-

distribute any money or other property payable or deliverable on any such
claims, and any custodian in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.7 hereof. To the extent that
the payment of any such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.7 hereof out of the estate in any such proceeding, shall be denied for
any reason, payment of the same shall be secured by a lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.

Section 6.11.     Priorities.

                  If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:

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

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

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

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

Section 6.12.     Undertaking for Costs.

                  In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its



                                      -90-

discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.7 hereof, or a
suit by Holders of more than 10% in principal amount of the then outstanding
Notes.

                                  ARTICLE VII.

                                     TRUSTEE

Section 7.1.      Duties of Trustee.

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

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

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

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

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

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

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

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



                                      -91-

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

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

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

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

Section 7.2.      Rights of Trustee.

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

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

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

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



                                      -92-

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

                  (f)      The Trustee shall not be charged with knowledge of
any Default or Event of Default under Section 6.1 hereof (other than under
Section 6.1(a) (subject to the following sentence) or Section 6.1(b) hereof)
unless either (i) a Responsible Officer shall have actual knowledge thereof, or
(ii) the Trustee shall have received notice thereof in accordance with Section
13.2 hereof from the Company or any Holder of the Notes. The Trustee shall not
be charged with knowledge of the Company's obligation to pay Additional
Interest, or the cessation of such obligation, unless the Trustee receives
written notice thereof from the Company or any Holder.

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

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

Section 7.3.      Individual Rights of Trustee.

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

Section 7.4.      Trustee's Disclaimer.

                  The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, or the Notes,
it shall not be accountable for the Company's use of the proceeds from the Notes
or any money paid to the Company or upon the Company's direction under any
provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or



                                      -93-

any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.

Section 7.5.      Notice of Defaults.

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

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

                  Within 60 days after each May 1 beginning with the May 1
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but if no
event described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA Section 313(b). The Trustee shall also transmit by mail
all reports as required by TIA Section 313(c).

                  A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with the Commission
and each stock exchange on which the Notes are listed in accordance with TIA
Section 313(d). The Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange.

Section 7.7.      Compensation, Reimbursement and Indemnity.

                  The Company shall pay to the Trustee from time to time such
compensation for its acceptance of this Indenture and the rendering by it of the
services required hereunder as shall be agreed upon in writing by the Company
and the Trustee. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by or on behalf of it in addition to the compensation
for its services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's attorneys, accountants, experts and
such other professionals as the Trustee deems necessary, advisable or
appropriate.

                  The Company shall indemnify the Trustee and any predecessor
Trustee against any and all losses, liabilities, claims, damages or expenses,
including taxes (other than taxes based upon, measured by or determined by the
income of the Trustee), incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture (including its
duties under Section 9.6 hereof), including the costs and expenses of enforcing



                                      -94-

this Indenture or any Guarantee against the Company or a Guarantor (including
this Section 7.7) and defending itself against or investigating any claim
(whether asserted by the Company, any Guarantor, any Holder or any other Person)
or liability in connection with the exercise or performance of any of its powers
or duties hereunder, except to the extent any such loss, liability or expense
may be attributable to its negligence or willful misconduct. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company of
its obligations hereunder. The Company shall defend any claim or threatened
claim asserted against the Trustee, and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld.

                  The obligations of the Company under this Section 7.7 shall
survive the resignation or removal of the Trustee, the satisfaction and
discharge of this Indenture and the termination of this Indenture.

                  To secure the Company's payment obligations in this Section
7.7, the Trustee shall have a Lien prior to the Notes on all money or property
held or collected by the Trustee, except that held in trust to pay principal,
Redemption Price or Purchase Price of or Additional Interest, if any, or
interest on, particular Notes. Such Lien shall survive the resignation or
removal of the Trustee, the satisfaction and discharge of this Indenture and the
termination of this Indenture.

                  When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(f) or (g) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.

Section 7.8.      Replacement of Trustee.

                  A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.

                  The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of Notes of a majority in principal amount of the then outstanding Notes
may remove the Trustee by so notifying the Trustee and the Company in writing.
The Company may remove the Trustee if:

                  (a)      the Trustee fails to comply with Section 7.10 hereof;



                                      -95-

                  (b)      the Trustee is adjudged a bankrupt or an insolvent or
         an order for relief is entered with respect to the Trustee under any
         Bankruptcy Law;

                  (c)      a custodian, receiver or public officer takes charge
         of the Trustee or its property for the purpose of rehabilitation,
         conversation or liquidation; or

                  (d)      the Trustee becomes incapable of acting.

                  If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the date on which the successor Trustee
takes office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.

                  If a successor Trustee does not take office within 30 days
after the retiring trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of Notes of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction, in the case
of the Trustee, at the expense of the Company, for the appointment of a
successor Trustee.

                  If the Trustee, after written request by any Holder of a Note
who has been a bona fide holder of a Note or Notes for at least six months,
fails to comply with Section 7.10, such Holder of a Note may petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee.

                  A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The Company shall mail a notice of its succession to
Holder of the Notes. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, provided all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided for in Section
7.7 hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company's obligations under Section 7.7 hereof shall continue for the
benefit of the retiring Trustee.

Section 7.9.      Successor Trustee by Merger, Etc.

                  If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation that is eligible under Section 7.10 hereof, the successor
corporation without any further act shall be the successor Trustee.



                                      -96-

Section 7.10.     Eligibility; Disqualification.

                  There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof (including the District of Columbia) that is
authorized under such laws to exercise corporate trust power, that is subject to
supervision or examination by federal or state authorities and that has a
combined capital and surplus of at least $100 million as set forth in its most
recent published annual report of condition.

                  This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).

Section 7.11.     Preferential Collection of Claims Against Company.

                  The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.

                                 ARTICLE VIII.

                    LEGAL DEFEASANCE AND COVENANT DEFEASANCE

Section 8.1.      Option to Effect Legal Defeasance or Covenant Defeasance.

                  The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.2 or 8.3 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article VIII.

Section 8.2.      Legal Defeasance and Discharge.

                  Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.2, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding Notes
on the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to the "outstanding" only
for the purposes of Section 8.5 hereof and the other Sections of this Indenture
referred to in clauses (a) through (d) below, and to have satisfied all their
other obligations under such Notes and this Indenture (and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder:



                                      -97-

                  (a)      the rights of Holders to receive payments in respect
         of the principal of, premium, if any, and interest on the Notes when
         such payments are due;

                  (b)      the Company's obligations with respect to the Notes
         concerning issuing temporary Notes, registration of Notes, mutilated,
         destroyed, lost or stolen Notes and the maintenance of an office or
         agency for payments;

                  (c)      the rights, powers, trust, duties and immunities of
         the Trustee and the Company's obligations in connection therewith; and

                  (d)      the Legal Defeasance provisions of this Article VIII.

                  Subject to compliance with this Article VIII, the Company may
exercise its option under this Section 8.2, notwithstanding the prior exercise
of its option under Section 8.3 hereof.

Section 8.3.      Covenant Defeasance.

                  Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.3, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, be released from
its obligations under the covenants contained in Sections 3.9, 3.10, 4.5, 4.7
through 4.12 and 4.14 through 4.23 hereof, both inclusive, and Section 5.1(2)
with respect to the outstanding Notes on and after the date the conditions set
forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes
shall thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document, and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.1 hereof, but,
except as specified above the remainder of this Indenture and such Notes shall
be unaffected thereby. In addition, upon the Company's exercise under Section
8.1 hereof of the option applicable to this Section 8.3, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, Sections 6.1(c)
through 6.1(h) hereof shall not constitute Events of Default.

Section 8.4.      Conditions to Legal or Covenant Defeasance.

                  The following are the conditions precedent to the application
of either Section 8.2 or 8.3 hereof to the outstanding Notes:



                                      -98-

                  In order to exercise either Legal Defeasance or Covenant
Defeasance:

                  (1)      the Company must irrevocably deposit with the
         Trustee, in trust, for the benefit of the Holders cash in U.S. dollars,
         non-callable U.S. Government Obligations, or a combination thereof, in
         such amounts as will be sufficient, in the opinion of a nationally
         recognized firm of independent public accountants, to pay the principal
         of, premium, if any, and interest on the Notes on the stated date for
         payment thereof or on the applicable redemption date, as the case may
         be;

                  (2)      in the case of Legal Defeasance, the Company shall
         have delivered to the Trustee an opinion of counsel in the United
         States reasonably acceptable to the Trustee confirming that:

                           (a)      the Company has received from, or there has
                  been published by, the Internal Revenue Service a ruling; or

                           (b)      since the date of this Indenture, there has
                  been a change in the applicable federal income tax law,

         in either case to the effect that, and based thereon such Opinion of
         Counsel shall confirm that, the Holders will not recognize income, gain
         or loss for federal income tax purposes as a result of such Legal
         Defeasance and will be subject to federal income tax on the same
         amounts, in the same manner and at the same times as would have been
         the case if such Legal Defeasance had not occurred;

                  (3)      in the case of Covenant Defeasance, the Company shall
         have delivered to the Trustee an opinion of counsel in the United
         States reasonably acceptable to the Trustee confirming that the Holders
         will not recognize income, gain or loss for federal income tax purposes
         as a result of such Covenant Defeasance and will be subject to federal
         income tax on the same amounts, in the same manner and at the same
         times as would have been the case if such Covenant Defeasance had not
         occurred;

                  (4)      no Default or Event of Default shall have occurred
         and be continuing on the date of such deposit (other than a Default or
         an Event of Default resulting from the borrowing of funds to fund the
         deposit referred to in clause (1) above);

                  (5)      such Legal Defeasance or Covenant Defeasance shall
         not result in a breach or violation of, or constitute a default under,
         this Indenture (other than a Default or an Event of Default resulting
         from the borrowing of funds to be applied to such deposit and the grant
         of any Lien securing such borrowings), the Credit Agreement or any
         other material agreement or instrument to which the Company or any of
         its Subsidiaries is a party or by which the Company or any of its
         Subsidiaries is bound;



                                      -99-

                  (6)      the Company shall have delivered to the Trustee an
         Officers' Certificate stating that the deposit was not made by the
         Company with the intent of preferring the Holders over any other
         creditors of the Company or with the intent of defeating, hindering,
         delaying or defrauding any other creditors of the Company or others;
         and

                  (7)      the Company shall have delivered to the Trustee an
         Officers' Certificate and an Opinion of Counsel, each stating that all
         conditions precedent provided for or relating to the Legal Defeasance
         or the Covenant Defeasance have been complied with.

                  Notwithstanding the foregoing, the Opinion of Counsel required
by clause (2) above with respect to a Legal Defeasance need not be delivered if
all Notes not theretofore delivered to the Trustee for cancellation (1) have
become due and payable or (2) will become due and payable on the maturity date
within one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company.

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

                  Subject to Section 8.6 hereof, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.5 only,
the "Trustee") pursuant to Section 8.4 hereof in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (other than the Company) as the Trustee may determine,
to the Holders of such Notes of all sums due and to become due thereon in
respect of principal or Redemption Price of, and Additional Interest, if any,
interest on, the Notes, provided that such money need not be segregated from
other funds except to the extent required by law.

                  The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or U.S.
Government Obligations deposited pursuant to Section 8.4 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.

                  Anything in this Article VIII to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or U.S. Government Obligations held by it as
provided in Section 8.4 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under



                                     -100-

Section 8.4(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.

Section 8.6.      Repayment to the Company.

                  Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal, Redemption
Price or Purchase Price of, or Additional Interest, if any, or interest on any
Note and remaining unclaimed for two years after such amount has become due and
payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note shall
thereafter look only to the Company for payment thereof as a general creditor,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, at the expense of the Company, may cause to
be published once, in The New York Times and The Wall Street Journal (national
editions), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days after the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.

Section 8.7.      Reinstatement.

                  If the Trustee or Paying Agent is unable to apply any United
States dollars or U.S. Government Obligations in accordance with Section 8.2 or
8.3 hereof, as the case may be, by reason of any order of judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations of the Company and the Guarantors under this
Indenture, and the Notes and the Guarantees shall be revived and reinstated as
though no deposit had occurred pursuant to Section 8.2 or 8.3 hereof until such
time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.2 or 8.3 hereof, as the case may be; provided,
however, that, if the Company makes any payment with respect to any Note
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money held by the Trustee or Paying Agent.

                                  ARTICLE IX.

                        AMENDMENT, SUPPLEMENT AND WAIVER

Section 9.1.      Without Consent of Holders of Notes.

                  Notwithstanding Section 9.2 of this Indenture, the Company,
the Guarantors and the Trustee may amend or supplement this Indenture or the
Notes without the consent of any Holder of a Note:



                                     -101-

                  (a)      to cure any ambiguity, defect or inconsistency so
         long as such changes do not, in the opinion of the Trustee, adversely
         affect the rights of any of the Holders in any material respect.

                  (b)      to provide for uncertificated Notes in addition to or
         in place of Certificated Notes;

                  (c)      to provide for the assumption of the Company's
         obligations to the Holders of the Notes in the case of a merger or
         consolidation or sale of all or substantially all of the Company's
         assets pursuant to Article V hereof;

                  (d)      to comply with the requirements of the Commission in
         order to effect or maintain the qualification of this Indenture under
         the TIA;

                  (e)      to add or release the Guarantees of Guarantors in
         compliance with this Indenture; or

                  (f)      to make any change that would provide any additional
         rights or benefits to the Holders of the Notes or that does not
         adversely affect the legal rights hereunder of any Holder of the Notes
         in any material respect.

                  Upon the request of the Company, accompanied by a resolution
of the Board (evidenced by an Officers' Certificate) authorizing the execution
of any such amended or supplemental indenture, and upon receipt by the Trustee
of the documents described in Section 7.2 hereof, the Trustee shall join with
the Company in the execution of any amended or supplemental Indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into such amended or supplemental indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.
In formulating its opinion on such matters, the Trustee shall be entitled to
rely on such evidence as it deems appropriate, including, without limitation,
solely on an Opinion of Counsel.

Section 9.2.      With Consent of Holders of Notes.

                  Except as provided below in this Section 9.2, the Company and
the Trustee may amend or supplement this Indenture and the Notes may be amended
or supplemented with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding (including, without limitation,
consents obtained in connection with a tender offer or exchange offer for the
Notes), and, subject to Sections 6.2, 6.4 and 6.7 hereof, any existing Default
or Event of Default or compliance with any provision of this Indenture or the
Notes may be waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes (including consents obtained in connection
with a tender offer or exchange offer for the Notes).



                                     -102-

                  Without the consent of each Holder affected, an amendment or
waiver may not (with respect to any Notes held by a non-consenting Holder):

                  (1)      reduce the amount of Notes whose Holders must consent
         to an amendment;

                  (2)      reduce the rate of or change or have the effect of
         changing the time for payment of interest, including defaulted
         interest, on any Notes;

                  (3)      reduce the principal of or change or have the effect
         of changing the fixed maturity of any Notes, or change the date on
         which any Notes may be subject to redemption or reduce the redemption
         price therefor, other than prior to the Company's obligation to
         purchase Notes under provisions relating to the Company's obligation to
         make and consummate a Change of Control Offer in the event of a Change
         of Control or to make and consummate a Net Proceeds Offer with respect
         to any Asset Sale;

                  (4)      make any Notes payable in money other than that
         stated in the Notes;

                  (5)      make any change in provisions of this Indenture
         protecting the right of each Holder to receive payment of principal of
         and interest on such Note on or after the due date thereof or to bring
         suit to enforce such payment, or permitting Holders of a majority in
         principal amount of Notes to waive Defaults or Events of Default;

                  (6)      between the date on which a Change of Control or an
         Asset Sale giving rise to the Company's obligation to make a Net
         Proceeds Offer occurs and the date on which the payments are made with
         respect to the related Change of Control Offer or Net Proceeds Offer,
         as the case may be, amend, change or modify in any material respect (A)
         the obligation of the Company to make and consummate a Change of
         Control Offer in the event of a Change of Control or make and
         consummate a Net Proceeds Offer with respect to Asset Sales that have
         been consummated or (B) any of the provisions or definitions with
         respect thereto;

                  (7)      modify or change any provision of this Indenture or
         the related definitions affecting the ranking of the Notes or
         subordination of any Guarantee in a manner which adversely affects the
         Holders in any material respect; or

                  (8)      release any Guarantor that is a Significant
         Subsidiary from any of its obligations under its Guarantee or this
         Indenture otherwise than in accordance with the terms of this
         Indenture.

                  Upon the written request of the Company accompanied by a
resolution of the Board (evidenced by an Officers' Certificate) authorizing the
execution of any such amended or supplemental indenture, and upon the filing
with the Trustee of evidence satisfactory to the



                                     -103-

Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of an Officers' Certificate and an Opinion of Counsel, the Trustee
shall join with the Company in the execution of such amended or supplemental
indenture unless such amended or supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such amended or supplemental indenture.

                  It shall not be necessary for the consent of the Holders of
Notes under this Section 9.2 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.

                  No amendment of, or supplement or waiver to, this Indenture
shall adversely affect the rights of the holders of any Guarantor Senior Debt
under Article X hereof (including any defined terms as used therein) without the
consent of each holder of Guarantor Senior Debt affected thereby.

                  After an amendment, supplement or waiver under this Section
9.2 becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver.

Section 9.3.      Compliance with Trust Indenture Act.

                  Every amendment or supplement to this Indenture or the Notes
shall be set forth in a amended or supplemental indenture that complies with the
TIA as then in effect.

Section 9.4.      Revocation and Effect of Consents.

                  Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and therefore binds every Holder.

Section 9.5.      Notation on or Exchange of Notes.

                  The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes



                                     -104-

may issue and the Trustee shall authenticate new Notes that reflect the
amendment, supplement or waiver.

                  Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.

Section 9.6.      Trustee To Sign Amendment, Etc.

                  The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article IX if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental Indenture until the Board
approves such amendment or supplemental indenture. In executing any amended or
supplemental indenture, the Trustee shall be entitled to receive, in addition to
the documents required by Sections 13.4 and 13.5 hereof, and, subject to Section
7.1, shall be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that (i) the execution of such amended or
supplemental indenture is authorized or permitted by this Indenture, (ii) no
Event of Default shall occur as a result of the execution of such Officers'
Certificate or the delivery of such Opinion of Counsel and (iii) the amended or
supplemental indenture complies with the terms of this Indenture.

                                   ARTICLE X.

                         SUBORDINATION OF THE GUARANTEES

Section 10.1.     Guarantees Subordinated to Guarantor Senior Debt.

                  Anything herein to the contrary notwithstanding, each of the
Company and the Guarantors, for itself and its successors, and each Holder, by
his or her acceptance of Guarantees, agrees that the payment by the Guarantors
of all Obligations with respect to the Guarantees is subordinated in right of
payment to the prior payment in full in cash or Cash Equivalents of all
Obligations on Guarantor Senior Debt (including all Obligations with respect to
the Credit Agreement). Notwithstanding the foregoing, payments and distributions
made relating to the Guarantees pursuant to the trust described under Article
VIII hereof shall not be so subordinated in right of payment so long as the
payments into the trust were made in accordance with the requirements described
under Article VIII hereof and did not violate the subordination provisions when
they were made.

                  This Article X shall constitute a continuing offer to all
Persons who become holders of, or continue to hold, Guarantor Senior Debt, and
such provisions are made for the benefit of the holders of Guarantor Senior Debt
and such holders are made obligees hereunder and any one or more of them may
enforce such provisions. Each such holder shall be deemed to have acquired such
Guarantor Senior Debt in reliance upon the covenants and provisions contained in
this Article X.



                                     -105-

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

                  (a)      Unless Section 10.3 hereof shall be applicable, if
any default occurs and is continuing in the payment when due (and such default
has not been cured or waived), whether at maturity, upon any redemption, by
declaration or otherwise, of any principal of, premium (if any) or interest on,
unpaid drawings for letters of credit issued in respect of, unreimbursed
payments with respect to bank guarantees issued in respect of or regularly
accruing fees with respect to, any Guarantor Senior Debt (a "Payment Default"),
then no payment or distribution of any kind or character shall be made by or on
behalf of any Guarantor or any other Person on its or their behalf with respect
to any Obligations on or relating to the Guarantees or to acquire any Notes for
cash or property or otherwise.

                  (b)      Unless Section 10.3 hereof shall be applicable, if
any other event of default (other than a Payment Default) occurs and is
continuing with respect to any Guarantor Designated Senior Debt (as such event
of default is defined in the instrument creating or evidencing such Guarantor
Designated Senior Debt) permitting the holders of such Guarantor Designated
Senior Debt then outstanding to accelerate the maturity thereof (a "Non-payment
Default") and if the Representative for the respective issue of Guarantor
Designated Senior Debt gives notice of the event of default to the Trustee
stating that such notice is a payment blockage notice (a "Payment Blockage
Notice"), then, unless and until all events of default have been cured or waived
or have ceased to exist or a Responsible Officer of the Trustee receives at the
Corporate Trust Office of the Trustee written notice thereof from the
Representative for the respective issue of Guarantor Designated Senior Debt
terminating the Payment Blockage Period, during the 180 days after the delivery
of such Payment Blockage Notice (the "Payment Blockage Period"), neither any
Guarantor nor any other Person on its behalf shall (x) make any payment or
distribution of any kind or character with respect to any Obligations on or with
respect to the Guarantees or (y) acquire any of the Notes for cash or property
or otherwise. Notwithstanding anything herein to the contrary, (x) in no event
will a Payment Blockage Period extend beyond 180 days from the date the
applicable Payment Blockage Notice is received by the Trustee and (y) no new
Payment Blockage Notice may be delivered unless and until 360 days have elapsed
since the effectiveness of the immediately prior Payment Blockage Notice. For
all purposes of this Section 10.2(b), no event of default which existed or was
continuing on the date of the commencement of any Payment Blockage Period with
respect to the Guarantor Designated Senior Debt shall be, or be made, the basis
for the commencement of a second Payment Blockage Period by the Representative
of such Guarantor Designated Senior Debt whether or not within a period of 360
days, unless such event of default shall have been cured or waived for a period
of not less than 90 consecutive days (it being acknowledged that any subsequent
action, or any breach of any financial covenants for a period commencing after
the date of commencement of such Payment Blockage Period that, in either case,
would give rise to an event of default pursuant to any provisions under which an
event of default previously existed or was continuing shall constitute a new
event of default for this purpose).



                                     -106-

                  (c)      In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder when such payment is
prohibited by the foregoing provisions of this Section 10.2, such payment shall
be held in trust for the benefit of, and shall be paid over or delivered to, the
holders of Guarantor Senior Debt (pro rata to such holders on the basis of the
respective amount of Senior Debt held by such holders) or their respective
Representatives, as their respective interests may appear. The Trustee shall be
entitled to rely on information regarding amounts then due and owing on the
Guarantor Senior Debt, if any, received from the holders of Guarantor Senior
Debt (or their Representatives) or, if such information is not received from
such holders or their Representatives, from the Company and only amounts
included in the information provided to the Trustee shall be paid to the holders
of Guarantor Senior Debt.

                  If payment of the Notes and Guarantees is accelerated because
of an Event of Default, the Guarantors or the Trustee shall promptly notify the
holders of the Guarantor Senior Debt or the Representative of such holders of
the acceleration; provided that any failure to give such notice shall have no
effect whatsoever on the subordination provisions contained herein. If any
Guarantor Senior Debt is outstanding, such acceleration will not be effective
until the time specified in Section 6.2.

                  Nothing contained in this Article X shall limit the right of
the Trustee or the Holders of Notes to take any action to accelerate the
maturity of the Notes pursuant to Section 6.2 or to pursue any rights or
remedies hereunder (subject, however, to the rights, if any, under this Article
X, of the holders of Guarantor Senior Debt in respect of cash or other property
of a Guarantor received upon the exercise of any such remedy); provided that all
Guarantor Senior Debt thereafter due or declared to be due shall first be paid
in full in cash or Cash Equivalents before the Holders are entitled to receive
any payment of any kind or character with respect to Obligations on, or with
respect to, the Guarantees.

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

                  (a)      Upon any payment or distribution of assets of any
Guarantor of any kind or character, whether in cash, property or securities, to
creditors upon any total or partial liquidation, dissolution, winding-up,
reorganization, assignment for the benefit of creditors or marshaling of assets
of any Guarantor or in a bankruptcy, reorganization, insolvency, receivership or
other similar proceeding relating to any Guarantor or its property, whether
voluntary or involuntary, all Obligations due or to become due upon all
Guarantor Senior Debt shall first be paid in full in cash or Cash Equivalents
(including interest after the commencement of any bankruptcy or other like
proceeding at the rate specified in the applicable Guarantor Senior Debt,
whether or not such interest is an allowed claim in any such proceeding), before
any payment or distribution of any kind or character is made on account of any
Obligations on or relating to the Guarantees, or for the acquisition of any of
the Notes for cash or property or



                                     -107-

otherwise. Upon any such dissolution, winding-up, liquidation, reorganization,
receivership or similar proceeding, any payment or distribution of assets of any
Guarantor of any kind or character, whether in cash, property or securities, to
which the Holders of the Notes or the Trustee under this Indenture would be
entitled, except for the provisions hereof, shall be paid by the Guarantor or by
any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the Holders or by the Trustee under
this Indenture if received by them, directly to the holders of Guarantor Senior
Debt (pro rata to such holders on the basis of the respective amounts of
Guarantor Senior Debt held by such holders) or their respective Representatives,
or to the trustee or trustees under any indenture pursuant to which any of such
Guarantor Senior Debt may have been issued, as their respective interests may
appear, for application to the payment of Guarantor Senior Debt remaining unpaid
until all such Guarantor Senior Debt has been paid in full in cash or Cash
Equivalents after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of Guarantor Senior Debt.

                  (b)      To the extent any payment of Guarantor Senior Debt
(whether by or on behalf of any Guarantor, as proceeds of security or
enforcement of any right of set-off or otherwise) is declared to be fraudulent
or preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
then, if such payment is recovered by, or paid over to, such receiver, trustee
in bankruptcy, liquidating trustee, agent or other similar Person, the Guarantor
Senior Debt or part thereof originally intended to be satisfied shall be deemed
to be reinstated and outstanding as if such payment had not occurred. It is
further agreed that any diminution (whether pursuant to court decree or
otherwise, including without limitation for any of the reasons described in the
preceding paragraph) of any Guarantor's obligation to make any distribution or
payment pursuant to any Guarantor Senior Debt, except to the extent such
diminution occurs by reason of the repayment (which has not been disgorged or
returned) of such Guarantor Senior Debt in cash or Cash Equivalents, shall have
no force or effect for purposes of the subordination provisions contained in
this Article X, with any turnover of payments as otherwise calculated pursuant
to this Article X to be made as if no such diminution had occurred.

                  (c)      In the event that, notwithstanding the foregoing, any
payment or distribution of assets of any Guarantor of any kind or character,
whether in cash, property or securities, shall be received by the Trustee or any
Holder when such payment or distribution is prohibited by this Section 10.3,
such payment or distribution shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Guarantor Senior Debt (pro
rata to such holders on the basis of the respective amount of Guarantor Senior
Debt held by such holders) or their respective Representatives, or to the
trustee or trustees under any indenture pursuant to which any of such Guarantor
Senior Debt may have been issued, as their respective interests may appear, for
application to the payment of Guarantor Senior Debt remaining unpaid until all
such Guarantor Senior Debt has been paid in full in cash or Cash



                                     -108-

Equivalents, after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of such Guarantor Senior Debt.

                  (d)      The consolidation of any Guarantor with, or the
merger of any Guarantor with or into, another Person or the liquidation or
dissolution of any Guarantor following the conveyance or transfer of all or
substantially all of its assets, to another Person upon the terms and conditions
provided in Article V hereof and as long as permitted under the terms of the
Guarantor Senior Debt shall not be deemed a dissolution, winding-up, liquidation
or reorganization for the purposes of this Section 10.3 if such other Person
shall, as a part of such consolidation, merger, conveyance or transfer, assume
the Guarantor's obligations hereunder in accordance with Article V hereof.

Section 10.4.     Payments May Be Paid Prior to Dissolution.

                  Nothing contained in this Article X or elsewhere in this
Indenture shall prevent (i) the Guarantors, except under the conditions
described in Sections 10.2 and 10.3, from making payments at any time for the
purpose of making payments of principal of and interest on the Notes, or from
depositing with the Trustee any moneys for such payments, or (ii) in the absence
of actual knowledge by a Responsible Officer of the Trustee that a given payment
would be prohibited by Section 10.2 or 10.3, the application by the Trustee of
any moneys deposited with it for the purpose of making such payments of
principal of, and interest on, the Notes to the Holders entitled thereto unless
at least two Business Days prior to the date upon which such payment would
otherwise become due and payable a Responsible Officer shall have actually
received the written notice provided for in the first sentence of Section
10.2(b) or in Section 10.7 or in the last sentence of this Section 10.4
(provided that, notwithstanding the foregoing, the subordination of the
Guarantees to Guarantor Senior Debt shall not be affected and the Holders
receiving any payments made in contravention of Section 10.2 and/or 10.3 (and
the respective such payments) shall otherwise be subject to the provisions of
this Article X). The Company shall give prompt written notice to the Trustee of
any dissolution, winding-up, liquidation or reorganization of any Guarantor,
although any delay or failure to give any such notice shall have no effect on
the subordination provisions contained herein.

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

                  Subject to the payment in full in cash or Cash Equivalents of
all Guarantor Senior Debt, the Holders of the Guarantees shall be subrogated to
the rights of the holders of Guarantor Senior Debt to receive payments or
distributions of cash, property or securities of any Guarantor applicable to the
Guarantor Senior Debt until the Notes shall be paid in full; and, for the
purposes of such subrogation, no such payments or distributions to the holders
of the Guarantor Senior Debt by or on behalf of any Guarantor, or by or on
behalf of the Holders by virtue of this Article X, which otherwise would have
been made to the Holders shall, as between any Guarantor and the Holders, be
deemed to be a payment by any Guarantor to or on account of the Guarantor Senior
Debt, it being understood that the provisions of this Arti-



                                     -109-

cle X are and are intended solely for the purpose of defining the relative
rights of the Holders, on the one hand, and the holders of Guarantor Senior
Debt, on the other hand.

Section 10.6.     Obligations of Guarantors Unconditional.

                  Nothing contained in this Article X or elsewhere in this
Indenture or in the Guarantees is intended to or shall impair, as among the
Guarantors, its creditors other than the holders of Guarantor Senior Debt, and
the Holders, the obligation of the Guarantors, which is absolute and
unconditional, to pay to the Holders the principal of and any interest on the
Notes as and when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of the Holders and
creditors of the Guarantors other than the holders of the Guarantor Senior Debt,
nor shall anything herein or therein prevent the Holder of any Guarantee or the
Trustee on its behalf from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
in respect of cash, property or securities of any Guarantor received upon the
exercise of any such remedy.

Section 10.7.     Notice to Trustee.

                  The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Guarantees pursuant to the provisions of
this Article X, although any delay or failure to give any such notice shall have
no effect on the subordination provisions contained herein. Regardless of
anything to the contrary contained in this Article X or elsewhere in this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any default or event of default with respect to any Guarantor Senior Debt or of
any other facts which would prohibit the making of any payment to or by the
Trustee unless and until a Responsible Officer of the Trustee shall have
received at the Corporate Trust Office of the Trustee notice in writing from the
Company or from a holder of Guarantor Senior Debt or a Representative therefor
and, prior to the receipt of any such written notice, the Trustee shall be
entitled to assume that no such facts exist (provided that, notwithstanding the
foregoing, the Holders of the Guarantees receiving any payments made in
contravention of Section 10.2 and/or 10.3 hereof (and the respective such
payments) shall otherwise be subject to the provisions of this Article X). The
Trustee shall be entitled to rely on the delivery to it of any notice pursuant
to this Section 10.7 to establish that such notice has been given by a holder of
Guarantor Senior Debt (or a Representative thereof).

                  In the event that the Trustee determines in good faith that
any evidence is required with respect to the right of any Person as a holder of
Guarantor Senior Debt to participate in any payment or distribution pursuant to
this Article X, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amounts of Guarantor Senior
Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Per-



                                     -110-

son under this Article X, and if such evidence is not furnished the Trustee may
defer any payment to such Person pending judicial determination as to the right
of such Person to receive such payment.

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

                  Upon any payment or distribution of assets of any Guarantor
referred to in this Article X, the Trustee, subject to the provisions of Article
VII hereof, and the Holders of the Guarantees shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which any
insolvency, bankruptcy, receivership, dissolution, winding-up, liquidation,
reorganization or similar case or proceeding is pending, or upon a certificate
of the receiver, trustee in bankruptcy, liquidating trustee, assignee for the
benefit of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or the Holders of the Guarantees, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Guarantor Senior Debt and other Indebtedness of
the Guarantors, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article X.

Section 10.9.     Trustee's Relation to Guarantor Senior Debt.

                  The Trustee and any agent of the Guarantors or the Trustee
shall be entitled to all the rights set forth in this Article X with respect to
any Guarantor Senior Debt which may at any time be held by it in its individual
or any other capacity to the same extent as any other holder of Guarantor Senior
Debt and nothing in this Indenture shall deprive the Trustee or any such agent
of any of its rights as such holder.

                  With respect to the holders of Guarantor Senior Debt, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article X, and no implied
covenants or obligations with respect to the holders of Guarantor Senior Debt
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Guarantor Senior Debt.

                  Whenever a distribution is to be made or a notice given to
holders or owners of Guarantor Senior Debt, the distribution may be made and the
notice may be given to their Representative, if any.

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

                  No right of any present or future holders of any Guarantor
Senior Debt to enforce subordination as provided herein shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Guarantors or by any act or failure to act by any such holder, or by any
noncompliance by the Guarantors with the terms of this Indenture, re-



                                     -111-

gardless of any knowledge thereof which any such holder may have or otherwise be
charged with.

                  Without in any way limiting the generality of the foregoing
paragraph, the holders of Guarantor Senior Debt may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders of the
Guarantees, without incurring responsibility to the Trustee or the Holders of
the Guarantees and without impairing or releasing the subordination provided in
this Article X or the obligations hereunder of the Holders of the Guarantees to
the holders of the Guarantor Senior Debt, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, Guarantor Senior Debt, or otherwise amend or supplement
in any manner Guarantor Senior Debt, or any instrument evidencing the same or
any agreement under which Guarantor Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Guarantor Senior Debt; (iii) release any Person liable in any
manner for the payment or collection of Guarantor Senior Debt; and (iv) exercise
or refrain from exercising any rights against the Guarantors and any other
Person.

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

                  Each Holder of Guarantees by its acceptance of them authorizes
and expressly directs the Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate, as between the holders of Guarantor
Senior Debt and the Holders of Guarantees, the subordination provided in this
Article X, and appoints the Trustee its attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of any Guarantor (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon an assignment for
the benefit of credits or otherwise) tending towards liquidation of the business
and assets of any Guarantor, the filing of a claim for the unpaid balance of its
Guarantees and accrued interest in the form required in those proceedings.

                  If the Trustee does not file a proper claim or proof of debt
in the form required in such proceeding prior to 30 days before the expiration
of the time to file such claim or claims, then the holders of the Guarantor
Senior Debt or their Representative are or is hereby authorized to have the
right to file and are or is hereby authorized to file an appropriate claim for
and on behalf of the Holders of said Guarantees. Nothing herein contained shall
be deemed to authorize the Trustee or the holders of Guarantor Senior Debt or
their Representative to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Guarantees or the rights of any Holder thereof, or to authorize
the Trustee or the holders of Guarantor Senior Debt or their Representative to
vote in respect of the claim of any Holder in any such proceeding.



                                     -112-

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

                  The failure to make a payment on account of principal of or
interest on the Notes by reason of any provision of this Article X will not be
construed as preventing the occurrence of an Event of Default.

Section 10.13.    Trustee's Compensation Not Prejudiced.

                  Nothing in this Article X will apply to amounts due to the
Trustee pursuant to other sections of this Indenture.

                                  ARTICLE XI.

                                    GUARANTEE

Section 11.1.     Unconditional Guarantee.

                  Each Guarantor hereby unconditionally guarantees (such
guarantee to be referred to herein as a "Guarantee"), on a senior subordinated
basis jointly and severally, to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns, the
Notes or the obligations of the Company hereunder or thereunder, that: (i) the
principal of and interest on the Notes will be promptly paid in full when due,
subject to any applicable grace period, whether at maturity, by acceleration or
otherwise and interest on the overdue principal, if any, and interest on any
interest, to the extent lawful, of the Notes and all other obligations of the
Company to the Holders or the Trustee hereunder or thereunder will be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and (ii) in case of any extension of time of payment or renewal of any Notes or
of any such other obligations, the same will be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal, subject
to any applicable grace period, whether at stated maturity, by acceleration or
otherwise, subject, however, in the case of clauses (i) and (ii) above, to the
limitations set forth in Section 11.3. Each Guarantor hereby agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, and action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that this Guarantee
will not be discharged except by complete performance of the obligations
contained in the Notes, this Indenture and in this Guarantee. If any Holder or
the Trustee is required by any court or otherwise to return to the Company, any
Guarantor, or any custodian, trustee, liquidator or other similar official
acting in



                                      -113-

relation to the Company or any Guarantor, any amount paid by the Company or any
Guarantor to the Trustee or such Holder, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. Each
Guarantor further agrees that, as between each Guarantor, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article VI for
the purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article VI, such obligations (whether or not due and payable)
shall forthwith become due and payable by each Guarantor for the purpose of this
Guarantee. The obligations of each Guarantor to the Holders of the Guarantees
and to the Trustee pursuant to the Guarantee of such Guarantor and this
Indenture are expressly subordinate and subject in right of payment to the prior
payment in full in cash or Cash Equivalents of all Guarantor Senior Debt of such
Guarantor, to the extent and in the manner provided in Article X hereof.

Section 11.2.     Severability.

                  In case any provision of this Guarantee shall be invalid,
illegal or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.

Section 11.3.     Limitation of Guarantor's Liability.

                  Each Guarantor and by its acceptance hereof each Holder
hereby confirms that it is the intention of all such parties that the guarantee
by such Guarantor pursuant to its Guarantee not constitute a fraudulent transfer
or conveyance for purposes of any Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or
state law. To effectuate the foregoing intention, the Holders and such Guarantor
hereby irrevocably agree that the obligations of such Guarantor under the
Guarantee shall be limited to the maximum amount as will, after giving effect to
all other contingent and fixed liabilities of such Guarantor (including, without
limitation, all Guarantor Senior Debt of such Guarantor) and after giving effect
to any collections from or payments made by or on behalf of any other Guarantor
in respect of the obligations of such other Guarantor under its Guarantee,
result in the obligations of such Guarantor under the Guarantee not constituting
such fraudulent transfer or conveyance.

Section 11.4.     Release of Guarantor.

                  (a)      The Guarantee of a Guarantor will be automatically
and unconditionally released without any action on the part of the Trustee or
the Holders of the Notes: (1) in connection with any sale or other disposition
of all or substantially all of the assets of that Guarantor (including, without
limitation, by way of merger or consolidation), if the Company applies the Net
Cash Proceeds of that sale or other disposition in accordance with the
applica-



                                      -114-

ble provisions of this Indenture; (2) in the event all of the Capital Stock of a
Guarantor is sold by the Company in compliance with clauses (1) and (2) of
Section 4.10(A) hereof, if the Company applies the Net Cash Proceeds of that
sale in accordance with the applicable provisions of this Indenture; (3) if the
Company designates a Restricted Subsidiary that is a Guarantor as an
Unrestricted Subsidiary in accordance with the applicable provisions of this
Indenture; or (4) upon the payment in full of the Notes.

                  In addition, concurrently with any Legal Defeasance or
Covenant Defeasance, the Guarantors shall be released from all of their
Obligations under their respective applicable Guarantees.

                  (b)      The Trustee shall deliver an appropriate instrument
evidencing such release upon receipt of a request by the Company accompanied by
an Officers' Certificate and Opinion of Counsel certifying as to the compliance
with this Section 11.4.

Section 11.5.     Immediate Payment.

                  Each Guarantor agrees to make immediate payment to the
Trustee on behalf of the Holders of all Obligations due and owing or payable to
the respective Holders upon receipt of a demand for payment therefor by the
Trustee to such Guarantor in writing.

Section 11.6.     Waiver of Subrogation.

                  Until all Obligations are paid in full, each Guarantor hereby
irrevocably waives any claims or other rights which it may now or hereafter
acquire against the Company that arise from the existence, payment, performance
or enforcement of such Guarantor's obligations under the Guarantee and this
Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, and any right to participate in any
claim or remedy of any Holder against the Company, whether or not such claim,
remedy or right arises in equity, or under contract, statute or common law,
including, without limitation, the right to take or receive from the Company,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim or other rights. If any
amount shall be paid to any Guarantor in violation of the preceding sentence and
the Notes shall not have been paid in full, such amount shall have been deemed
to have been paid to such Guarantor for the benefit of, and held in trust for
the benefit of, the Holders, and shall, subject to the provisions of Article X
hereof, forthwith be paid to the Trustee for the benefit of such Holders to be
credited and applied upon the Notes, whether matured or unmatured, in accordance
with the terms of this Indenture. Each Guarantor acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this Section
11.6 is knowingly made in contemplation of such benefits.



                                      -115-

Section 11.7.     Execution of Guarantee.

                  To evidence their guarantee to the Holders set forth in this
Article XI, the Guarantors hereby agree to execute the Guarantee in
substantially the form attached hereto as Exhibit C, which shall be endorsed on
each Note ordered to be authenticated and delivered by the Trustee. Each
Guarantor hereby agrees that its Guarantee set forth in this Article XI shall
remain in full force and effect notwithstanding any failure to endorse on each
Note a notation of such Guarantee. Each such Guarantee shall be signed on behalf
of each Guarantor by one of its authorized Officers prior to the authentication
of the Note on which it is endorsed, and the delivery of such Note by the
Trustee, after the authentication thereof hereunder, shall constitute due
delivery of such Guarantee on behalf of such Guarantor. Such signatures upon the
Guarantee may be by manual or facsimile signature of such officers and may be
imprinted or otherwise reproduced on the Guarantee, and in case any such officer
who shall have signed the Guarantee shall cease to be such officer before the
Note on which such Guarantee is endorsed shall have been authenticated and
delivered by the Trustee or disposed of by the Company, such Note nevertheless
may be authenticated and delivered or disposed of as though the Person who
signed the Guarantee had not ceased to be such officer of the Guarantor.

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

                  Each Guarantor covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law or other law that would prohibit or forgive each such Guarantor
from performing its Guarantee as contemplated herein, wherever enacted, now or
at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
each such Guarantor hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.

                                  ARTICLE XII.

                           SATISFACTION AND DISCHARGE

Section 12.1.     Satisfaction and Discharge.

                  This Indenture will be discharged and will cease to be of
further effect (except as set forth below) and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture when:



                                      -116-

                  (1)      either

                           (a)      all the Notes theretofore authenticated and
                  delivered (except lost, stolen or destroyed Notes which have
                  been replaced or paid as provided in Section 2.7 and Notes for
                  whose payment money has theretofore been deposited in trust or
                  segregated and held in trust by the Company and thereafter
                  repaid to the Company or discharged from such trust) have been
                  delivered to the Trustee for cancellation; or

                           (b)      all Notes not theretofore delivered to the
                  Trustee for cancellation (1) have become due and payable or
                  (2) will become due and payable within one year, or are to be
                  called for redemption within one year, under arrangements
                  reasonably satisfactory to the Trustee for the giving of
                  notice of redemption by the Trustee in the name, and at the
                  expense, of the Company, and the Company has irrevocably
                  deposited or caused to be deposited with the Trustee funds in
                  an amount sufficient to pay and discharge the entire
                  Indebtedness on the Notes not theretofore delivered to the
                  Trustee for cancellation, for principal of, premium, if any,
                  and interest on the Notes to the date of maturity or
                  redemption, as the case may be, together with irrevocable
                  instructions from the Company directing the Trustee to apply
                  such funds to the payment thereof at maturity or redemption,
                  as the case may be;

                  (2)      the Company has paid all other sums payable under
         this Indenture by the Company; and

                  (3)      the Company has delivered to the Trustee an officers'
         certificate and an opinion of counsel stating that all conditions
         precedent under this Indenture relating to the satisfaction and
         discharge of this Indenture have been complied with.

                  Notwithstanding the satisfaction and discharge of this
Indenture, the Company's obligations in Sections 2.3, 2.4, 2.6, 2.7, 2.11, 7.7,
7.8, 13.2, 13.3 and 13.4, and the Trustee's and Paying Agent's obligations in
Section 12.2 shall survive until the Notes are no longer outstanding.
Thereafter, only the Company's obligations in Section 7.7 shall survive.

Section 12.2.     Application of Trust.

                  All money deposited with the Trustee pursuant to Section 12.1
shall be held in trust and, at the written direction of the Company, be invested
prior to maturity in U.S. Government Obligations, and applied by the Trustee in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any) and interest
for the payment of which money has been deposited with the Trustee; but such
money need not be segregated from other funds except to the extent required by
law.



                                      -117-

                                  ARTICLE XIII.

                                  MISCELLANEOUS

Section 13.1.     Trust Indenture Act Controls.

                  If any provision hereof limits, qualifies or conflicts with a
provision of the TIA or another provision that would be required or deemed under
such Act to be part of and govern this Indenture if this Indenture were subject
thereto, the latter provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.

Section 13.2.     Notices.

                  Any notice or communication by the Company or the Trustee to
others is duly given if in writing and delivered in Person or mailed by first
class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:

                  If to the Company:

                           Dole Food Company, Inc.
                           One Dole Drive
                           Westlake Village, California  91363
                           Attention: General Counsel
                           Fax: (818) 879-6654

                  With a copy to:

                           Paul, Hastings, Janofsky & Walker LLP
                           695 Town Center Drive
                           Costa Mesa, California  92626-1924
                           Attention: Peter J. Tennyson
                           Fax: (714) 979-1921



                                      -118-

                  If to the Trustee:

                           Wells Fargo Bank, National Association
                           Attention: Corporate Trust Department
                           707 Wilshire Boulevard
                           17th Floor
                           Los Angeles, California  90017
                           Fax: (213) 614-3355

                  The Company or the Trustee, by notice to the others (and to
each Representative of Guarantor Designated Senior Debt known to it to be then
outstanding) may designate additional or different addresses for subsequent
notices or communications.

                  All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.

                  Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on the
register kept by the Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA Section 313(c), to the extent required by
the TIA. Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders.

                  If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the address
receives it.

                  If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.

Section 13.3.     Communication by Holders of Notes with Other Holders of Notes.

                  Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).

Section 13.4.     Certificate and Opinion as to Conditions Precedent.

                  Upon any request or application by the Company and/or any
Guarantor to the Trustee to take any action under this Indenture, the Company
and/or any Guarantor shall furnish to the Trustee:



                                      -119-

                  (a)      an Officers' Certificate in form and substance
         reasonably satisfactory to the Trustee stating that, in the opinion of
         the signers, all conditions precedent and covenants, if any, provided
         for in this Indenture relating to the proposed action have been
         satisfied; and

                  (b)      an Opinion of Counsel in form and substance
         reasonably satisfactory to the Trustee stating that, in the opinion of
         such counsel, all such conditions precedent and covenants have been
         satisfied.

Section 13.5.     Statements Required in Certificate or Opinion.

                  Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:

                  (a)      a statement that the Person making such certificate
         or opinion has read such covenant or condition;

                  (b)      a brief statement as to the nature and scope of the
         examination or investigation upon which the statements or opinions
         contained in such certificate or opinion are based;

                  (c)      a statement that, in the opinion of such Person, he
         or she has made such examination or investigation as is necessary to
         enable him to express an informed opinion as to whether or not such
         covenant or condition has been satisfied; and

                  (d)      a statement as to whether or not, in the opinion of
         such Person, such condition or covenant has been satisfied.

Section 13.6.     Rules by Trustee and Agents.

                  The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.

Section 13.7.     No Personal Liability of Directors, Officers, Employees and
                  Stockholders.

                  No past, present or future director, officer, employee,
incorporator, agent, stockholder or Affiliate of the Company, as such, shall
have any liability for any obligations of the Company under the Notes or this
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. No past, present or future director, officer,
employee, incorporator, agent, stockholder or Affiliate of any of the
Guarantors, as such, shall have any liability for any obligations of the
Guarantors under the Guarantees or this Indenture



                                      -120-

or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of Notes and Guarantees by accepting a Note and a
Guarantee waives and releases all such liabilities. The waiver and release are
part of the consideration for issuance of the Notes and the Guarantees. Such
waiver may not be effective to waive liabilities under the federal securities
law and it is the view of the Commission that such a waiver is against public
policy.

Section 13.8.     Governing Law; Submission to Jurisdiction; Waiver of Jury
                  Trial.

                  THIS INDENTURE, THE GUARANTEES AND THE NOTES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY. THE COMPANY AND EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS INDENTURE, THE GUARANTEES AND THE NOTES, AND IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY AND EACH
GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THAT IT MAY EFFECTIVELY DO
SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY HOLDER OF THE NOTES TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE COMPANY OR ANY GUARANTOR IN ANY OTHER
JURISDICTION.

Section 13.9.     No Adverse Interpretation of Other Agreements.

                  This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.



                                      -121-

Section 13.10.    Successors.

                  All agreements of the Company in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors.

Section 13.11.    Severability.

                  In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.

Section 13.12.    Counterpart Originals.

                  The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.

Section 13.13.    Table of Contents, Headings, Etc.

                  The Table of Contents, Cross-Reference Table and Headings of
the Articles and Sections of this Indenture, which have been inserted for
convenience of reference only, are not to be considered a part of this Indenture
and shall in no way modify or restrict any of the terms or provisions hereof.

Section 13.14.    Qualification of Indenture.

                  The Company shall qualify this Indenture under the TIA in
accordance with the terms and conditions of the Registration Rights Agreement
and shall pay all reasonable costs and expenses (including attorneys' fees for
the Company, the Trustee and the Holders of the Notes) incurred in connection
therewith, including, but not limited to, costs and expenses of qualification of
this Indenture and the Notes and printing this Indenture and the Notes. The
Trustee shall be entitled to receive from the Company any such Officers'
Certificates, Opinions of Counsel or other documentation as it may reasonably
request in connection with any such qualification of this Indenture under the
TIA.

                         [Signatures on following page]



                                      -122-

                                   SIGNATURES

                                        DOLE FOOD COMPANY, INC.

                                        By: /s/ Lawrence A. Kern
                                            ----------------------------------
                                            Name:  Lawrence A. Kern
                                            Title: President and COO

                                        WELLS FARGO BANK, NATIONAL
                                        ASSOCIATION, as Trustee

                                        By: /s/ Frank McDonald
                                            ----------------------------------
                                            Name:  Frank McDonald
                                            Title: Vice President



                                      -123-

                                        THE GUARANTORS NAMED IN
                                        SCHEDULE A ATTACHED HERETO

                                        By: /s/ C. Michael Carter
                                            ----------------------------------
                                            Name:  C. Michael Carter
                                            Title: Vice President



                                                                      SCHEDULE A

Calazo Corporation
AG 1970, Inc.
AG 1971, Inc.
AG 1972, Inc.
Alyssum Corporation
Barclay Hollander Corporation
Bud Antle, Inc.
Calicahomes, Inc.
California Polaris, Inc.
Dole ABPIK, Inc.
Dole Arizona Dried Fruit and Nut Company
Dole Asia, Inc.
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 Visage, Inc.
E. T. Wall Company
Earlibest Orange Association, Inc.
Fallbrook Citrus Company, Inc.
Lindero Headquarters Company, Inc.
Lindero Property, Inc.
Oceanview Produce Company
Prairie Vista, Inc.
Royal Packing Co.
Veltman Terminal Co.
Bananera Antillana (Colombia), Inc.
Clovis Citrus Association
Delphinium Corporation
Dole Europe Company
Dole Foods Flight Operations, Inc.
Dole Fresh Flowers, Inc.
Dole Northwest, Inc.
Dole Sunfresh Express, Inc.
Standard Fruit and Steamship Company
Standard Fruit Company
Sun Country Produce, Inc.



                                       -2-

West Foods, Inc.
Cool Advantage, Inc.
Cool Care, Inc.
Flowernet Inc.
Saw Grass Transport, Inc.
Blue Anthurium, Inc.
Cerulean, Inc.
Dole Diversified, Inc.
Dole Land Company, Inc.
Dole Packaged Foods Corporation
Intervest, Inc.
La Petite d'Agen, Inc.
MK Development, Inc.
Malaga Company, Inc.
Muscat, Inc.
Oahu Transport Company, Limited
Wahiawa Water Company, Inc.
Waialua Sugar 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. (DOCE)
Dole Ocean Liner Express, Inc.
Renaissance Capital Corporation
Sun Giant, Inc.
DNW Services Company
Pacific Coast Truck Company
Pan-Alaska Fisheries, Inc.



                                                                       EXHIBIT A

                              FORM OF SERIES A NOTE

                                 (Face of Note)

                             DOLE FOOD COMPANY, INC.

                           8-7/8% SENIOR NOTE DUE 2011

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITARY TO ANYONE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

                  THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
RULE 904 UN-



DER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS NOTE RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A)
TO DOLE FOOD COMPANY, INC. OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED
STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR (AS
DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT, AN
"ACCREDITED INVESTOR") THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED
ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR
THIS NOTE), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF DOLE
FOOD COMPANY, INC. SO REQUESTS), OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN TWO YEARS AFTER
THE ORIGINAL ISSUANCE OF THIS NOTE, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND
DOLE FOOD COMPANY, INC. SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION
AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT.

                                      A-2



                             DOLE FOOD COMPANY, INC.

                           8-7/8% SENIOR NOTE DUE 2011

                                               CUSIP No.______________________
No._______________                             $______________________________

Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 1

                  DOLE FOOD COMPANY, INC., a Delaware corporation (the
"Company," which term includes any successor corporation under the indenture
hereinafter referred to ), for value received, promises to pay to
____________________________________________________ or registered assigns, the
principal sum of _____________________ Dollars on March 15, 2011.

                  Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as set forth at this place.

                  Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefits under the Indenture referred to
on the reverse hereof or be valid or obligatory for any purpose.

                  IN WITNESS WHEREOF, the Company has caused this Note to be
duly executed under its corporate seal.

[SEAL]                     Dated:

                           DOLE FOOD COMPANY, INC.

                           By: ________________________________________
                               Name:
                               Title:

                           By: ________________________________________
                               Name:
                               Title:

                                       A-3



This is one of the Notes referred to
in the within-mentioned Indenture:

WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee

By: _________________________________
    Name:
    Title:

                                      A-4



                                 (Back of Note)

                          8-7/8% Senior Notes due 2011

                  Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.

                  1.       Interest. The Company promises to pay interest on the
principal amount of this Note at the rate of 8-7/8% per annum from the date of
original issuance until maturity and shall pay the Additional Interest pursuant
to Section 4 of the Registration Rights Agreement referred below. The Company
will pay interest and Additional Interest semi-annually on March 15 and
September 15 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). Interest on the Note
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further, that the first Interest Payment Date with
respect to a Note issued on the Issue Date shall be September 15, 2003. The
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue payments of the principal, Purchase Price
and Redemption Price of this Note from time to time on demand at a rate that is
1% per annum in excess of the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Additional Interest, if any, (without
regard to any applicable grace periods) hereon from time to time on demand at
the same rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.

                  2.       Method of Payment. The Company will pay interest on
the Notes (except defaulted interest) and Additional Interest, if any, to the
Persons who are registered Holders of Notes at the close of business on March 1
and September 1 next preceding the Interest Payment Date, even if such Notes are
canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. Any such installment of interest or Additional Interest, if any, not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holders on such Interest Payment Date, and may be paid to the
registered Holders at the close of business on a special interest payment date
to be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered Holders not less than 10 days prior to
such special interest payment date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The Notes will be
payable as to principal, Redemption Price, Pur-

                                      A-5



chase Price, interest and Additional Interest, if any, by wire transfer of
immediately available funds. Such payment shall be in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts.

                  3.       Paying Agent and Registrar. Initially, Wells Fargo
Bank, National Association, the Trustee under the Indenture, will act as Paying
Agent and Registrar. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company may act in any such capacity.

                  4.       Indenture and Guarantees. The Company issued $475
million in aggregate principal amount of the Notes under an Indenture dated as
of March 28, 2003 (the "Indenture") between the Company, the Guarantors and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S.C. Code Sections 77aaa-77bbbb). The Notes are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Notes are general obligations of the Company.
Payment on each Note is guaranteed on a senior subordinated basis, jointly and
severally, by the Guarantors pursuant to Article XI of the Indenture.

                           The Guarantee of any Guarantor is subordinated in
right of payment, in the manner and to the extent set forth in the Indenture, to
the prior payment in full in cash or Cash Equivalents of all Guarantor Senior
Debt of such Guarantor, whether outstanding on the date of the Indenture or
thereafter created, incurred, assumed or guaranteed. Each Holder by his
acceptance hereof agrees to be bound by such provisions and authorizes and
expressly directs the Trustee, on his behalf, to take such action as may be
necessary or appropriate to effectuate the subordination provided for in the
Indenture and appoints the Trustee his attorney-in-fact for such purposes.

                  5.       Optional Redemption. The Company may redeem any or
all of the Notes at any time on or after March 15, 2007, upon not less than 30
nor more than 60 days' prior notice in amounts of $1,000 or an integral multiple
thereof at the Redemption Prices (expressed as a percentage of the principal
amount) set forth below, if redeemed during the 12-month period beginning March
15 of the years indicated below:



                                                               Redemption
Year                                                             Price
- ----                                                           ----------
                                                            
2007...............................................             104.438%
2008...............................................             102.219%
2009 and thereafter................................             100.000%


in each case together with accrued and unpaid interest and Additional Interest,
if any, to the Redemption Date.

                                      A-6



                  If less than all the Notes are to be redeemed, the Trustee
will select the particular Notes or portions thereof to be redeemed by lot, pro
rata or by any other method the Trustee shall deem fair and reasonable.

                  6        Optional Redemption Upon Equity Offerings. In the
event the Company completes one or more Equity Offerings on or before March 15,
2006, the Company, at its option, may use the net cash proceeds from any such
Equity Offering to redeem up to 35% of the original principal amount of the
Notes (a "Special Redemption") at a Redemption Price of 108.875% of the
principal amount, together with accrued and unpaid interest and Additional
Interest (if any), to the date of redemption, provided, however, that at least
65% of the original principal amount of the Notes initially issued under the
Indenture will remain outstanding immediately after each such redemption; and
provided, further, that each such redemption shall occur within 90 days after
the date of the closing of the applicable Equity Offering. If less than all the
Notes are to be redeemed, the Trustee will select the particular Notes or
portions thereof to be redeemed by lot, only on a pro rata basis or on as nearly
a pro rata basis as is practicable (subject to DTC procedures).

                  7.       Mandatory Redemption. Except as set forth in
Paragraph 9 below with respect to repurchases of Notes in certain events, the
Company shall not be required to make mandatory redemption payments with respect
to the Notes.

                  8.       Notice of Redemption. Subject to the provisions of
the Indenture, a notice of redemption will be mailed at least 30 days but not
more than 60 days before the Redemption Date to each Holder whose Notes are to
be redeemed at its registered address. Notes in denominations larger than $1,000
may be redeemed in part but only in whole multiples of $1,000, unless all of the
Notes held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for redemption.

                  9.       Repurchase at Option of Holder.

                  (a)      If there is a Change of Control, the Company shall be
required to make an offer (a "Change of Control Offer") to repurchase all or any
part (equal to $1,000 or an integral multiple thereof) of each Holder's Notes at
a Purchase Price equal to 101% of the principal amount thereof plus accrued and
unpaid interest and Additional Interest, if any, to the date of repurchase, in
accordance with the procedures set forth in the Indenture. Subject to the terms
and conditions set forth in the Indenture, within 30 days following any Change
of Control, the Company shall mail a notice to each Holder setting forth the
procedures governing the Change of Control Offer as required by the Indenture.

                  (b)      Pending the final application of such Net Cash
Proceeds, the Company may temporarily reduce borrowings under the Credit
Agreement or any other revolving credit facility, if any. On the 366th day after
an Asset Sale or such earlier date, if any, as the Board of Directors of the
Company or of such Restricted Subsidiary determines not to apply the Net

                                      A-7



Cash Proceeds relating to such Asset Sale as set forth in clauses (3)(a), (3)(b)
and (3)(c) of paragraph (A) of Section 4.10 of the Indenture, or, in the event
that a definitive agreement has been entered into prior to such 366th day
pursuant to which the Net Cash Proceeds are to be applied on the later of the
366th day and the 121st day after the execution of such agreement (each, a "Net
Proceeds Offer Trigger Date"), such aggregate amount of Net Cash Proceeds which
have not been applied on or before such Net Proceeds Offer Trigger Date as
permitted in clauses (3)(a), (3)(b) and (3)(c) of paragraph (A) of Section 4.10
of the Indenture (each, a "Net Proceeds Offer Amount") shall be applied by the
Company or such Restricted Subsidiary to make an offer to purchase (the "Net
Proceeds Offer") to all Holders and, to the extent required by the terms of any
Pari Passu Debt, an offer to purchase to all holders of such Pari Passu Debt, on
a date (the "Net Proceeds Offer Payment Date") not less the 30 nor more then 60
days following the applicable Net Proceeds Offer Trigger Date, from all Holders
(and holders of any such Pari Passu Debt) on a pro rata basis, that amount of
Notes (and Pari Passu Debt) equal to the Net Proceeds Offer Amount at a price
equal to 100% of the principal amount of the Notes (and Pari Passu Debt) to be
purchased, plus accrued and unpaid interest thereon, if any, to the date of
purchase; provided, however, that if at any time any non-cash consideration
received by the Company or any Restricted Subsidiary of the Company, as the case
may be, in connection with any Asset Sale is converted into or sold or otherwise
disposed of for cash (other than interest received with respect to any such
non-cash consideration), then such conversion or disposition shall be deemed to
constitute an Asset Sale hereunder as of the date of such conversion or
disposition and the Net Cash Proceeds thereof shall be applied in accordance
with this covenant. Each Net Proceeds Offer will be mailed to the record Holders
as shown on the register of Holders within 25 days following the Net Proceeds
Offer Trigger Date, with a copy to the Trustee, and shall comply with the
procedures set forth in the Indenture. Upon receiving notice of the Net Proceeds
Offer, Holders may elect to tender their Notes in whole or in part in integral
multiples of $1,000 in exchange for cash. To the extent Holders properly tender
Notes and holders of Pari Passu Debt properly tender such Indebtedness in an
amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari
Passu Debt will be purchased on a pro rata basis based on aggregate amounts of
Notes and Pari Passu Debt tendered (and the Trustee shall select the tendered
Notes of tendering Holders on a pro rata basis based on the amount of Notes
tendered). A Net Proceeds Offer shall remain open for a period of 20 business
days or such longer period as may be required by law. If any Net Cash Proceeds
remain after the consummation of any Net Proceeds Offer, the Company may use
those Net Cash Proceeds for any purpose not otherwise prohibited by the
Indenture. Upon completion of each Net Proceeds Offer, the Net Proceeds Offer
Amount will be reset at zero.

                  10.      Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes

                                       A-8



and fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, it need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed or during the
period between a record date and the corresponding Interest Payment Date.

                  11.      Persons Deemed Owners. The registered Holder of a
Note may be treated as its owner for all purposes.

                  12.      Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture and the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes, and any existing default or compliance with any provision of
the Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes. Without the consent
of any Holder of a Note, the Indenture and the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's obligations to Holders of the Notes
in case of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder in any
material respect, or to comply with the requirements of the Commission in order
to effect or maintain the qualification of the Indenture under the Trust
Indenture Act.

                  13.      Defaults and Remedies. Events of Default include: (1)
the failure to pay interest on any Notes when the same becomes due and payable
and the default continues for a period of 30 days (whether or not such payment
shall be prohibited by the subordination provisions of the Indenture); (2) the
failure to pay the principal of any Notes when such principal becomes due and
payable, at maturity, upon redemption or otherwise (including the failure to
make a payment to purchase Notes tendered pursuant to a Change of Control Offer
or a Net Proceeds Offer) (whether or not such payment shall be prohibited by the
subordination provisions of the Indenture); (3) a default in the observance or
performance of any other covenant or agreement contained in the Indenture which
default continues for a period of 45 days after the Company receives written
notice specifying the default (and demanding that such default be remedied) from
the Trustee or the Holders of at least 25% of the outstanding principal amount
of the Notes (except in the case of a default with respect to Section 5.1 of the
Indenture, which will constitute an Event of Default with such notice
requirement but without such passage of time requirement); (4) the failure to
pay at final maturity (giving effect to any applicable grace periods and any
extensions thereof) the stated principal amount of any Indebtedness of the
Company or any Restricted Subsidiary of the Company, or the acceleration of the
final stated maturity of any such Indebtedness (which acceleration is not
rescinded, annulled or otherwise cured within 30 days of receipt by the Company
or such Re-

                                       A-9



stricted subsidiary of notice of any such acceleration) if the aggregate
principal amount of such Indebtedness, together with the principal amount of any
other such Indebtedness in default for failure to pay principal at final stated
maturity or which has been accelerated (in each case with respect to which the
30-day period described above has elapsed), aggregated $25.0 million or more at
any time; provided that if such failure to pay shall be remedied, waived or
extended within 30 days of receipt by the Company or such Restricted Subsidiary
of notice of such acceleration, then any Default or Event of Default hereunder
shall be deemed likewise to be remedied, waived or extended without further
action by the Company; (5) one or more judgments in an aggregate amount in
excess of $25.0 million shall have been rendered against the Company or any of
is Restricted Subsidiaries and such judgments remain undischarged, unpaid or
unstayed for a period of 60 days after such judgment or judgments become final
and non-appealable; provided, however, that the rendering of any such
judgment(s) shall not be an Event of Default under this clause (5) unless (i)
the Company and its Restricted Subsidiaries which are subject to the order, as
of the date of the issuance of such judgment(s), have at least $25.0 million in
net assets located in such court's jurisdiction or (ii) a final and
non-appealable order enforcing such judgment(s) is entered by a court of
competent jurisdiction in a jurisdiction where the Company and its Restricted
Subsidiaries subject to the order, as of the date of the entry of such order of
enforcement, have at least $25.0 million in net assets located in such
jurisdiction; (6) certain events of bankruptcy affecting the Company or any of
its Significant Subsidiaries; or (7) any Guarantee of a Significant Subsidiary
ceases to be in full force and effect or any Guarantee of a Significant
Subsidiary is declared to be null and void and unenforceable or any Guarantee of
a Significant Subsidiary is found to be invalid or any Guarantor that is a
Significant Subsidiary denies its liability under its Guarantee (other than by
reason of release of such Guarantor in accordance with the terms of the
Indenture). If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately. Upon any such
declaration, the entire principal amount of, and accrued and unpaid interest and
Additional Interest, if any, on the Notes shall become immediately due and
payable. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all outstanding Notes
will become due and payable without further action or notice. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture. Subject
to certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders of the Notes notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to
payment on any Note) if it determines that withholding notice is in their
interest. The Holders of a majority in principal amount of the Notes may waive
any existing or past Default or Event of Default under the Indenture, and its
consequences, except a default in the payment of the principal of, or interest
on any Notes. The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Company is required
upon becoming aware of any Default or Event of Default, to deliver to the
Trustee a statement specifying such Default or Event of Default.

                                      A-10



                  14.      Trustee Dealings with Company. Subject to certain
limitations, the Trustee under the Indenture, in its individual or any other
capacity, may become owner or pledge of Notes and may otherwise deal with the
Company or its Affiliates as if it were not Trustee.

                  15.      No Recourse Against Others. No past, present or
future director, officer, employee, incorporator or stockholder of the Company,
as such, shall have any liability for any obligations of the Company under the
Notes or the Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.

                  16.      Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.

                  17.      Abbreviations. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).

                  18.      Discharge Prior to Maturity. If the Company deposits
with the Trustee or Paying Agent cash or U.S. Government Obligations sufficient
to pay the principal or Redemption Price of, and interest and Additional
Interest, if any, on, the Notes to maturity or a specified Redemption Date and
satisfies certain conditions specified in the Indenture, the Company will be
discharged from the Indenture, except for certain Sections thereof.

                  19.      Governing Law. The Indenture and Guarantees and this
Note shall be governed by and construed in accordance with the laws of the State
of New York but without giving effect to applicable principles of conflicts of
law to the extent that the application of the law of another jurisdiction would
be required thereby. Each of the Company and each Guarantor hereby irrevocably
submits to the jurisdiction of any New York state court sitting in the Borough
of Manhattan in the City of New York or any Federal court sitting in the Borough
of Manhattan in the City of New York in respect of any suit, action or
proceeding arising out of or relating to the Indenture and the Notes, and
irrevocably accept for itself and in respect of its property, generally and
unconditionally, jurisdiction of the aforesaid courts. Each of the Company and
each Guarantor irrevocably waives, to the fullest extent that it may effectively
do so under applicable law, trial by jury and any objection which it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding
brought in any such court and any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. Nothing
herein shall affect the right of the Trustee or any Holder of the Notes to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Company or any Guarantor in any other
jurisdiction.

                                      A-11



                  20.      CUSIP Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Notes and the Trustee may
use CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the correctness or accuracy of such numbers either
as printed on the Notes or as contained in any notice of redemption or
repurchase and reliance may be placed only on the other identification numbers
placed thereon.

                  21.      Registration Rights. Pursuant to the Registration
Rights Agreement, the Company will be obligated upon the occurrence of certain
events to consummate an exchange offer pursuant to which the Holder of this Note
shall have the right to exchange this Series A Note for the Company's 8-7/8%
Senior Notes due 2011, Series B, which have been registered under the Securities
Act, in like principal amount and having terms identical in all material
respects as the Series A Notes. The Holders shall be entitled to receive certain
additional interest payments in the event such exchange offer is not consummated
and upon certain other conditions, all pursuant to and in accordance with the
terms of the Registration Rights Agreement.

                  The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Request may be made to:

                           Dole Food Company, Inc.
                           One Dole Drive
                           Westlake Village, CA  91362
                           Attention: General Counsel

                                      A-12



                                 ASSIGNMENT FORM

                  To assign this Note, fill in the form below:

                  (I) or (we) assign and transfer this Note to

________________________________________________________________________________
                  (Insert assignee's soc. sec. or tax I.D. no.)

________________________________________________________________________________

________________________________________________________________________________

________________________________________________________________________________

________________________________________________________________________________

________________________________________________________________________________
              (Print or type assignee's name address and zip code)

and irrevocably appoint_________________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.

     Date: _____________________

                                Your Signature: ________________________________
                                              (Sign exactly as your name appears
                                                   on the face of this Note)

          Signature Guarantee: _________________________________________________
                              (Participant in recognized signature guarantee
                                             medallion program)

                                      A-13



                       OPTION OF HOLDER TO ELECT PURCHASE

                  If you wish to elect to have all or any portion of this Note
purchased by the Company pursuant to Section 4.10 ("Net Proceeds Offer") or
Section 4.15 ("Change of Control Offer") of the Indenture, check the applicable
boxes

         [ ] Net Proceeds Offer:                  [ ] Change of Control Offer:

             in whole      [ ]                        in whole      [ ]

             in part       [ ]                        in part       [ ]

             Amount to be                             Amount to be
             purchased: $___________                  purchased: $___________

         Dated: __________________     Signature: ______________________________
                                                 (Sign exactly as your name
                                                 appears on the other side of
                                                 this Note)

         Signature Guarantee: __________________________________________________
                             (Participant in recognized signature guarantee
                                            medallion program)

         Social Security Number or
         Taxpayer Identification Number:_______________________________

                                      A-14



                                                                       EXHIBIT B

                              FORM OF SERIES B NOTE

                                 (Face of Note)

                             DOLE FOOD COMPANY, INC.

                           8-7/8% SENIOR NOTE DUE 2011

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITARY TO ANYONE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.



                             DOLE FOOD COMPANY, INC.

                           8-7/8% SENIOR NOTE DUE 2011

                                                      CUSIP No._________________
No._______________                                    $_________________________

Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 1

                  DOLE FOOD COMPANY, INC., a Delaware corporation (the
"Company," which term includes any successor corporation under the indenture
hereinafter referred to ), for value received, promises to pay to
____________________________________________________ or registered assigns, the
principal sum of _____________________ Dollars on March 15, 2011.

                  Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as set forth at this place.

                  Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefits under the Indenture referred to
on the reverse hereof or be valid or obligatory for any purpose.

                  IN WITNESS WHEREOF, the Company has caused this Note to be
duly executed under its corporate seal.

[SEAL]                                  Dated:

                                        DOLE FOOD COMPANY, INC.

                                        By: ____________________________________
                                            Name:
                                            Title:

                                        By: ____________________________________
                                            Name:
                                            Title:

                                       B-2



This is one of the Notes referred to
in the within-mentioned Indenture:

WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee

By: ________________________________
    Name:
    Title:

                                       B-3



                                 (Back of Note)

                          8-7/8% Senior Notes due 2011

                  Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.

                  1.       Interest. The Company promises to pay interest on the
principal amount of this Note at the rate of 8-7/8% per annum from the date of
original issuance until maturity. The Company will pay interest and Additional
Interest semi-annually on March 15 and September 15 of each year, or if any such
day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Note will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date of issuance; provided that if there is no existing Default in the payment
of interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date with respect to a Note issued on the Issue Date
shall be September 15, 2003. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
payments of the principal, Purchase Price and Redemption Price of this Note from
time to time on demand at a rate that is 1% per annum in excess of the rate then
in effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Additional Interest, if any, (without regard to any applicable grace periods)
hereon from time to time on demand at the same rate to the extent lawful.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.

                  2.       Method of Payment. The Company will pay interest on
the Notes (except defaulted interest) and Additional Interest, if any, to the
Persons who are registered Holders of Notes at the close of business on March 1
and September 1 next preceding the Interest Payment Date, even if such Notes are
canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. Any such installment of interest or Additional Interest, if any, not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holders on such Interest Payment Date, and may be paid to the
registered Holders at the close of business on a special interest payment date
to be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered Holders not less than 10 days prior to
such special interest payment date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The Notes will be
payable as to principal, Redemption Price, Purchase Price, interest and
Additional Interest, if any, by wire transfer of immediately available funds.
Such payment shall be in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts.

                                       B-5



                  3.       Paying Agent and Registrar. Initially, Wells Fargo
Bank, National Association, the Trustee under the Indenture, will act as Paying
Agent and Registrar. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company may act in any such capacity.

                  4.       Indenture and Guarantees. The Company issued $375
million in aggregate principal amount of the Notes under an Indenture dated as
of March 28, 2003 (the "Indenture") between the Company, the Guarantors and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S.C. Code Sections 77aaa-77bbbb). The Notes are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Notes are general obligations of the Company.
Payment on each Note is guaranteed on a senior subordinated basis, jointly and
severally, by the Guarantors pursuant to Article XI of the Indenture.

                           The Guarantee of any Guarantor is subordinated in
right of payment, in the manner and to the extent set forth in the Indenture, to
the prior payment in full in cash or Cash Equivalents of all Guarantor Senior
Debt of such Guarantor, whether outstanding on the date of the Indenture or
thereafter created, incurred, assumed or guaranteed. Each Holder by his
acceptance hereof agrees to be bound by such provisions and authorizes and
expressly directs the Trustee, on his behalf, to take such action as may be
necessary or appropriate to effectuate the subordination provided for in the
Indenture and appoints the Trustee his attorney-in-fact for such purposes.

                  5.       Optional Redemption. The Company may redeem any or
all of the Notes at any time on or after March 15, 2007, upon not less than 30
nor more than 60 days' prior notice in amounts of $1,000 or an integral multiple
thereof at the Redemption Prices (expressed as a percentage of the principal
amount) set forth below, if redeemed during the 12-month period beginning
January 1 of the years indicated below:



                                                               Redemption
Year                                                              Price
- ----                                                           ----------
                                                            
2007...............................................             104.438%
2008...............................................             102.219%
2009 and thereafter................................             100.000%


in each case together with accrued and unpaid interest and Additional Interest,
if any, to the Redemption Date.

                  If less than all the Notes are to be redeemed, the Trustee
will select the particular Notes or portions thereof to be redeemed by lot, pro
rata or by any other method the Trustee shall deem fair and reasonable.

                                       B-6



                  6.       Optional Redemption Upon Equity Offerings. In the
event the Company completes one or more Equity Offerings on or before January 1,
2005, the Company, at its option, may use the net cash proceeds from any such
Equity Offering to redeem up to 35% of the original principal amount of the
Notes (a "Special Redemption") at a Redemption Price of 108.875% of the
principal amount, together with accrued and unpaid interest and Additional
Interest (if any), to the date of redemption, provided, however, that at least
65% of the original principal amount of the Notes initially issued under the
Indenture will remain outstanding immediately after each such redemption; and
provided, further, that each such redemption shall occur within 90 days after
the date of the closing of the applicable Equity Offering. If less than all the
Notes are to be redeemed, the Trustee will select the particular Notes or
portions thereof to be redeemed by lot, only on a pro rata basis or on as nearly
a pro rata basis as is practicable (subject to DTC procedures).

                  7.       Mandatory Redemption. Except as set forth in
Paragraph 9 below with respect to repurchases of Notes in certain events, the
Company shall not be required to make mandatory redemption payments with respect
to the Notes.

                  8.       Notice of Redemption. Subject to the provisions of
the Indenture, a notice of redemption will be mailed at least 30 days but not
more than 60 days before the Redemption Date to each Holder whose Notes are to
be redeemed at its registered address. Notes in denominations larger than $1,000
may be redeemed in part but only in whole multiples of $1,000, unless all of the
Notes held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for redemption.

                  9.       Repurchase at Option of Holder.

                  (a)      If there is a Change of Control, the Company shall be
required to make an offer (a "Change of Control Offer") to repurchase all or any
part (equal to $1,000 or an integral multiple thereof) of each Holder's Notes at
a Purchase Price equal to 101% of the principal amount thereof plus accrued and
unpaid interest and Additional Interest, if any, to the date of repurchase, in
accordance with the procedures set forth in the Indenture. Subject to the terms
and conditions set forth in the Indenture, within 30 days following any Change
of Control, the Company shall mail a notice to each Holder setting forth the
procedures governing the Change of Control Offer as required by the Indenture.

                  (b)      Pending the final application of such Net Cash
Proceeds, the Company may temporarily reduce borrowings under the Credit
Agreement or any other revolving credit facility, if any. On the 366th day after
an Asset Sale or such earlier date, if any, as the Board of Directors of the
Company or of such Restricted Subsidiary determines not to apply the Net Cash
Proceeds relating to such Asset Sale as set forth in clauses (3)(a), (3)(b) and
(3)(c) of paragraph (A) of Section 4.10 of the Indenture, or, in the event that
a definitive agreement has been entered into prior to such 366th day pursuant to
which the Net Cash Proceeds are to be applied on the later of the 366th day and
the 121st day after the execution of such agreement

                                       B-7



(each, a "Net Proceeds Offer Trigger Date"), such aggregate amount of Net Cash
Proceeds which have not been applied on or before such Net Proceeds Offer
Trigger Date as permitted in clauses (3)(a), (3)(b) and (3)(c) of paragraph (A)
of Section 4.10 of the Indenture (each, a "Net Proceeds Offer Amount") shall be
applied by the Company or such Restricted Subsidiary to make an offer to
purchase (the "Net Proceeds Offer") to all Holders and, to the extent required
by the terms of any Pari Passu Debt, an offer to purchase to all holders of such
Pari Passu Debt, on a date (the "Net Proceeds Offer Payment Date") not less the
30 nor more then 60 days following the applicable Net Proceeds Offer Trigger
Date, from all Holders (and holders of any such Pari Passu Debt) on a pro rata
basis, that amount of Notes (and Pari Passu Debt) equal to the Net Proceeds
Offer Amount at a price equal to 100% of the principal amount of the Notes (and
Pari Passu Debt) to be purchased, plus accrued and unpaid interest thereon, if
any, to the date of purchase; provided, however, that if at any time any
non-cash consideration received by the Company or any Restricted Subsidiary of
the Company, as the case may be, in connection with any Asset Sale is converted
into or sold or otherwise disposed of for cash (other than interest received
with respect to any such non-cash consideration), then such conversion or
disposition shall be deemed to constitute an Asset Sale hereunder as of the date
of such conversion or disposition and the Net Cash Proceeds thereof shall be
applied in accordance with this covenant. Each Net Proceeds Offer will be mailed
to the record Holders as shown on the register of Holders within 25 days
following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and
shall comply with the procedures set forth in the Indenture. Upon receiving
notice of the Net Proceeds Offer, Holders may elect to tender their Notes in
whole or in part in integral multiples of $1,000 in exchange for cash. To the
extent Holders properly tender Notes and holders of Pari Passu Debt properly
tender such Indebtedness in an amount exceeding the Net Proceeds Offer Amount,
the tendered Notes and Pari Passu Debt will be purchased on a pro rata basis
based on aggregate amounts of Notes and Pari Passu Debt tendered (and the
Trustee shall select the tendered Notes of tendering Holders on a pro rata basis
based on the amount of Notes tendered). A Net Proceeds Offer shall remain open
for a period of 20 business days or such longer period as may be required by
law. If any Net Cash Proceeds remain after the consummation of any Net Proceeds
Offer, the Company may use those Net Cash Proceeds for any purpose not otherwise
prohibited by the Indenture. Upon completion of each Net Proceeds Offer, the Net
Proceeds Offer Amount will be reset at zero.

                  10.      Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, it need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be re-

                                       B-8



deemed or during the period between a record date and the corresponding Interest
Payment Date.

                  11.      Persons Deemed Owners. The registered Holder of a
Note may be treated as its owner for all purposes.

                  12.      Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture and the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes, and any existing default or compliance with any provision of
the Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes. Without the consent
of any Holder of a Note, the Indenture and the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's obligations to Holders of the Notes
in case of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder in any
material respect, or to comply with the requirements of the Commission in order
to effect or maintain the qualification of the Indenture under the Trust
Indenture Act.

                  13.      Defaults and Remedies. Events of Default include: (1)
the failure to pay interest on any Notes when the same becomes due and payable
and the default continues for a period of 30 days (whether or not such payment
shall be prohibited by the subordination provisions of the Indenture); (2) the
failure to pay the principal of any Notes when such principal becomes due and
payable, at maturity, upon redemption or otherwise (including the failure to
make a payment to purchase Notes tendered pursuant to a Change of Control Offer
or a Net Proceeds Offer) (whether or not such payment shall be prohibited by the
subordination provisions of the Indenture); (3) a default in the observance or
performance of any other covenant or agreement contained in the Indenture which
default continues for a period of 45 days after the Company receives written
notice specifying the default (and demanding that such default be remedied) from
the Trustee or the Holders of at least 25% of the outstanding principal amount
of the Notes (except in the case of a default with respect to Section 5.1 of the
Indenture, which will constitute an Event of Default with such notice
requirement but without such passage of time requirement); (4) the failure to
pay at final maturity (giving effect to any applicable grace periods and any
extensions thereof) the stated principal amount of any Indebtedness of the
Company or any Restricted Subsidiary of the Company, or the acceleration of the
final stated maturity of any such Indebtedness (which acceleration is not
rescinded, annulled or otherwise cured within 30 days of receipt by the Company
or such Restricted subsidiary of notice of any such acceleration) if the
aggregate principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay principal at
final stated maturity or which has been accelerated (in each case with respect
to which the 30-day period described above has elapsed), aggregated $25.0
million or more at any time; provided that if such failure to pay shall be
remedied, waived or

                                       B-9



extended within 30 days of receipt by the Company or such Restricted Subsidiary
of notice of such acceleration, then any Default or Event of Default hereunder
shall be deemed likewise to be remedied, waived or extended without further
action by the Company; (5) one or more judgments in an aggregate amount in
excess of $25.0 million shall have been rendered against the Company or any of
is Restricted Subsidiaries and such judgments remain undischarged, unpaid or
unstayed for a period of 60 days after such judgment or judgments become final
and non-appealable; provided, however, that the rendering of any such
judgment(s) shall not be an Event of Default under this clause (5) unless (i)
the Company and its Restricted Subsidiaries which are subject to the order, as
of the date of the issuance of such judgment(s), have at least $25.0 million in
net assets located in such court's jurisdiction or (ii) a final and
non-appealable order enforcing such judgment(s) is entered by a court of
competent jurisdiction in a jurisdiction where the Company and its Restricted
Subsidiaries subject to the order, as of the date of the entry of such order of
enforcement, have at least $25.0 million in net assets located in such
jurisdiction; (6) certain events of bankruptcy affecting the Company or any of
its Significant Subsidiaries; or (7) any Guarantee of a Significant Subsidiary
ceases to be in full force and effect or any Guarantee of a Significant
Subsidiary is declared to be null and void and unenforceable or any Guarantee of
a Significant Subsidiary is found to be invalid or any Guarantor that is a
Significant Subsidiary denies its liability under its Guarantee (other than by
reason of release of such Guarantor in accordance with the terms of the
Indenture). If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately. Upon any such
declaration, the entire principal amount of, and accrued and unpaid interest and
Additional Interest, if any, on the Notes shall become immediately due and
payable. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all outstanding Notes
will become due and payable without further action or notice. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture. Subject
to certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders of the Notes notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to
payment on any Note) if it determines that withholding notice is in their
interest. The Holders of a majority in principal amount of the Notes may waive
any existing or past Default or Event of Default under the Indenture, and its
consequences, except a default in the payment of the principal of, or interest
on any Notes. The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Company is required
upon becoming aware of any Default or Event of Default, to deliver to the
Trustee a statement specifying such Default or Event of Default.

                  14.      Trustee Dealings with Company. Subject to certain
limitations, the Trustee under the Indenture, in its individual or any other
capacity, may become owner or pledge of Notes and may otherwise deal with the
Company or its Affiliates as if it were not Trustee.

                                      B-10



                  15.      No Recourse Against Others. No past, present or
future director, officer, employee, incorporator or stockholder of the Company,
as such, shall have any liability for any obligations of the Company under the
Notes or the Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.

                  16.      Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.

                  17.      Abbreviations. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).

                  18.      Discharge Prior to Maturity. If the Company deposits
with the Trustee or Paying Agent cash or U.S. Government Obligations sufficient
to pay the principal or Redemption Price of, and interest and Additional
Interest, if any, on, the Notes to maturity or a specified Redemption Date and
satisfies certain conditions specified in the Indenture, the Company will be
discharged from the Indenture, except for certain Sections thereof.

                  19.      Governing Law. The Indenture and Guarantees and this
Note shall be governed by and construed in accordance with the laws of the State
of New York but without giving effect to applicable principles of conflicts of
law to the extent that the application of the law of another jurisdiction would
be required thereby. Each of the Company and each Guarantor hereby irrevocably
submits to the jurisdiction of any New York state court sitting in the Borough
of Manhattan in the City of New York or any Federal court sitting in the Borough
of Manhattan in the City of New York in respect of any suit, action or
proceeding arising out of or relating to the Indenture and the Notes, and
irrevocably accept for itself and in respect of its property, generally and
unconditionally, jurisdiction of the aforesaid courts. Each of the Company and
each Guarantor irrevocably waives, to the fullest extent that it may effectively
do so under applicable law, trial by jury and any objection which it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding
brought in any such court and any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. Nothing
herein shall affect the right of the Trustee or any Holder of the Notes to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Company or any Guarantor in any other
jurisdiction.

                  20.      CUSIP Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Notes and the Trustee may
use CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the correctness or ac-

                                      B-11



curacy of such numbers either as printed on the Notes or as contained in any
notice of redemption or repurchase and reliance may be placed only on the other
identification numbers placed thereon.

                  The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Request may be made to:

                           Dole Food Company, Inc.
                           One Dole Drive
                           Westlake Village, CA  91362
                           Attention: General Counsel

                                      B-12



                                                                       EXHIBIT C

                                    GUARANTEE

                  For value received, the undersigned hereby unconditionally
guarantees, as principal obligor and not only as a surety, to the Holder of this
Note the cash payments in United States dollars of principal of, premium, if
any, and interest on this Note (and including Additional Interest payable
thereon) in the amounts and at the times when due and interest on the overdue
principal, premium, if any, and interest, if any, of this Note, if lawful, and
the payment or performance of all other Obligations of the Company under the
Indenture (as defined below) or the Note, to the Holder of this Note and the
Trustee, all in accordance with and subject to the terms and limitations of this
Note, Article XI of the Indenture, the subordination provisions of Article X of
the Indenture and this Guarantee. This Guarantee will become effective in
accordance with Article XI of the Indenture and its terms shall be evidenced
therein. The validity and enforceability of this Guarantee shall not be affected
by the fact that it is not affixed to any particular Note. Capitalized terms
used but not defined herein shall have the meanings ascribed to them in the
Indenture dated as of March 28, 2003, among Dole Food Company, Inc., a Delaware
corporation, as issuer (the "Company"), each of the Guarantors named therein and
Wells Fargo Bank, National Association, as trustee (the "Trustee") (as amended
or supplemented, the "Indenture").

                  THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. Each Guarantor hereby
agrees to submit to the jurisdiction of the courts of the State of New York in
any action or proceeding arising out of or relating to this Guarantee.

                  This Guarantee is subject to release upon the terms set forth
in the Indenture.

                                        [GUARANTOR]

                                        By: ____________________________
                                            Name:
                                            Title:

EX-4.11

                                                                    EXHIBIT 4.11

- --------------------------------------------------------------------------------

                          REGISTRATION RIGHTS AGREEMENT

                           Dated as of March 28, 2003

                                      Among

                             DOLE FOOD COMPANY, INC.

                                       and

                           THE GUARANTORS NAMED HEREIN

                                   as Issuers,

                                       and

                         DEUTSCHE BANK SECURITIES INC.,
                         BANC OF AMERICA SECURITIES LLC,
                           SCOTIA CAPITAL (USA) INC.,
                             FLEET SECURITIES, INC.,
                        SG COWEN SECURITIES CORPORATION,

                                       and

                            BMO NESBITT BURNS CORP.,
                              as Initial Purchasers

                          8-7/8% Senior Notes due 2011

- --------------------------------------------------------------------------------



                                TABLE OF CONTENTS



                                                                                                                 Page
                                                                                                                 ----
                                                                                                              
1.       Definitions..........................................................................................    1

2.       Exchange Offer.......................................................................................    5

3.       Shelf Registration...................................................................................    9

4.       Additional Interest..................................................................................   11

5.       Registration Procedures..............................................................................   13

6.       Registration Expenses................................................................................   22

7.       Indemnification and Contribution.....................................................................   23

8.       Rules 144 and 144A...................................................................................   27

9.       Underwritten Registrations...........................................................................   27

10.      Miscellaneous........................................................................................   28


                                       -i-



                          REGISTRATION RIGHTS AGREEMENT

                  This Registration Rights Agreement (this "Agreement") is dated
as of March 28, 2003, among DOLE FOOD COMPANY, INC., a Delaware corporation (the
"Company"), the subsidiaries of the Company listed on Schedule 1 hereto
(collectively, and together with any entity that in the future executes a
supplemental indenture pursuant to which such entity agrees to guarantee the
Notes (as hereinafter defined), the "Guarantors," and together with the Company,
the "Issuers") and DEUTSCHE BANK SECURITIES INC., BANC OF AMERICA SECURITIES
LLC, SCOTIA CAPITAL (USA) INC., FLEET SECURITIES, INC., SG COWEN SECURITIES
CORPORATION and BMO NESBITT BURNS CORP. as initial purchasers (the "Initial
Purchasers").

                  This Agreement is entered into in connection with the Purchase
Agreement by and among the Issuers and the Initial Purchasers, dated as of March
28, 2003 (the "Purchase Agreement"), which provides for, among other things, the
sale by the Company to the Initial Purchasers of $475,000,000 aggregate
principal amount of the Company's 8-7/8% Senior Notes due 2011 (the "Notes")
guaranteed on an unsecured senior subordinated basis by the Guarantors (the
"Guarantees"). In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Issuers have agreed to provide the registration rights
set forth in this Agreement for the benefit of the Initial Purchasers and any
subsequent holder or holders of the Notes. The execution and delivery of this
Agreement is a condition to the Initial Purchasers' obligation to purchase the
Notes under the Purchase Agreement.

                  The parties hereby agree as follows:

         1.       Definitions

                  As used in this Agreement, the following terms shall have the
following meanings:

                  Additional Interest: See Section 4(a) hereof.

                  Advice: See the last paragraph of Section 5 hereof.

                  Agreement: See the introductory paragraphs hereto.

                  Applicable Period: See Section 2(b) hereof.

                  Business Day: Any day that is not a Saturday, Sunday or a day
on which banking institutions in New York are authorized or required by law to
be closed.

                  Company: See the introductory paragraphs hereto.



                                       -2-

                  Effectiveness Date: With respect to (i) the Exchange Offer
Registration Statement, the 180th day after the Issue Date and (ii) any Shelf
Registration Statement, the 90th day after the Filing Date with respect thereto;
provided, however, that if the Effectiveness Date would otherwise fall on a day
that is not a Business Day, then the Effectiveness Date shall be the next
succeeding Business Day.

                  Effectiveness Period: See Section 3(a) hereof.

                  Event Date: See Section 4(b) hereof.

                  Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.

                  Exchange Notes: See Section 2(a) hereof.

                  Exchange Offer: See Section 2(a) hereof.

                  Exchange Offer Registration Statement: See Section 2(a)
hereof.

                  Filing Date: (A) If no Registration Statement has been filed
by the Company pursuant to this Agreement, the 90th day after the Issue Date;
and (B) in any other case (which may be applicable notwithstanding the
consummation of the Exchange Offer), the 90th day after the delivery of a Shelf
Notice as required pursuant to Section 2(c) hereof; provided, however, that if
the Filing Date would otherwise fall on a day that is not a Business Day, then
the Filing Date shall be the next succeeding Business Day.

                  Guarantees: See the introductory paragraphs hereto.

                  Guarantors: See the introductory paragraphs hereto.

                  Holder: Any holder of a Registrable Note or Registrable
Notes.

                  Indenture: The Indenture, dated as of March 28, 2003, by and
among the Company, the Guarantors, and Wells Fargo Bank, National Association,
as Trustee, pursuant to which the Notes are being issued, as amended or
supplemented from time to time in accordance with the terms thereof.

                  Information: See Section 5(o) hereof.

                  Initial Purchasers: See the introductory paragraphs hereto.

                  Initial Shelf Registration: See Section 3(a) hereof.



                                      -3-

                  Inspectors: See Section 5(o) hereof.

                  Issue Date: March 28, 2003, the date of original issuance of
the Notes.

                  Issuers: See the introductory paragraphs hereto.

                  NASD: See Section 5(s) hereof.

                  Notes: See the introductory paragraphs hereto.

                  Participant: See Section 7(a) hereof.

                  Participating Broker-Dealer: See Section 2(b) hereof.

                  Person: An individual, trustee, corporation, partnership,
limited liability company, joint stock company, trust, unincorporated
association, union, business association, firm or other legal entity.

                  Private Exchange: See Section 2(b) hereof.

                  Private Exchange Notes: See Section 2(b) hereof.

                  Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A under the Securities Act and any term sheet filed pursuant to Rule 434
under the Securities Act), as amended or supplemented by any prospectus
supplement, and all other amendments and supplements to the Prospectus,
including post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.

                  Purchase Agreement: See the introductory paragraphs hereof.

                  Records: See Section 5(o) hereof.

                  Registrable Notes: Each Note (and the related Guarantees) upon
its original issuance and at all times subsequent thereto, each Exchange Note
(and the related Guarantees) as to which Section 2(c)(iv) hereof is applicable
upon original issuance and at all times subsequent thereto and each Private
Exchange Note (and the related Guarantees) upon original issuance thereof and at
all times subsequent thereto, until, in each case, the earliest to occur of (i)
a Registration Statement (other than, with respect to any Exchange Note as to
which Section 2(c)(iv) hereof is applicable, the Exchange Offer Registration
Statement) covering such Note, Exchange Note or Private Exchange Note has been
declared effective by the SEC and



                                      -4-

such Note, Exchange Note or such Private Exchange Note (and the related
Guarantees), as the case may be, has been disposed of in accordance with such
effective Registration Statement, (ii) such Note has been exchanged pursuant to
the Exchange Offer for an Exchange Note or Exchange Notes (and the related
Guarantees) that may be resold without restriction under state and federal
securities laws, (iii) such Note, Exchange Note or Private Exchange Note (and
the related Guarantees), as the case may be, ceases to be outstanding for
purposes of the Indenture or (iv) such Note, Exchange Note or Private Exchange
Note (and the related Guarantees), as the case may be, may be resold without
restriction pursuant to Rule 144(k) (as amended or replaced) under the
Securities Act.

                  Registration Statement: Any registration statement of the
Company that covers any of the Notes, the Exchange Notes or the Private Exchange
Notes (and the related Guarantees) filed with the SEC under the Securities Act,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.

                  Rule 144: Rule 144 under the Securities Act.

                  Rule 144A: Rule 144A under the Securities Act.

                  Rule 405: Rule 405 under the Securities Act.

                  Rule 415: Rule 415 under the Securities Act.

                  Rule 424: Rule 424 under the Securities Act.

                  SEC: The U.S. Securities and Exchange Commission.

                  Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.

                  Shelf Notice: See Section 2(c) hereof.

                  Shelf Registration: See Section 3(b) hereof.

                  Shelf Registration Statement: Any Registration Statement
relating to a Shelf Registration.

                  Shelf Suspension Period: See Section 3(a) hereof.

                  Subsequent Shelf Registration: See Section 3(b) hereof.



                                      -5-

                  TIA: The Trust Indenture Act of 1939, as amended.

                  Trustee: The trustee under the Indenture and the trustee (if
any) under any indenture governing the Exchange Notes and Private Exchange Notes
(and the related Guarantees).

                  Underwritten registration or underwritten offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.

                  Except as otherwise specifically provided, all references in
this Agreement to acts, laws, statutes, rules, regulations, releases, forms,
no-action letters and other regulatory requirements (collectively, "Regulatory
Requirements") shall be deemed to refer also to any amendments thereto and all
subsequent Regulatory Requirements adopted as a replacement thereto having
substantially the same effect therewith; provided that Rule 144 shall not be
deemed to amend or replace Rule 144A.

         2.       Exchange Offer

                  (a)      Unless the Exchange Offer would violate applicable
law or any applicable interpretation of the staff of the SEC, the Issuers shall
use their respective reasonable best efforts to file with the SEC, no later than
the Filing Date, a Registration Statement (the "Exchange Offer Registration
Statement") on an appropriate registration form with respect to a registered
offer (the "Exchange Offer") to exchange any and all of the Registrable Notes
for a like aggregate principal amount of debt securities of the Company (the
"Exchange Notes"), guaranteed on an unsecured senior subordinated basis by the
Guarantors, that are identical in all material respects to the Notes, except
that (i) the Exchange Notes shall contain no restrictive legend thereon and (ii)
interest thereon shall accrue from the last date on which interest was paid on
the Notes or, if no such interest has been paid, from the Issue Date, and which
are entitled to the benefits of the Indenture or a trust indenture which is
identical in all material respects to the Indenture (other than such changes to
the Indenture or any such identical trust indenture as are necessary to comply
with the TIA) and which, in either case, has been qualified under the TIA. The
Exchange Offer shall comply in all material respects with all applicable tender
offer rules and regulations under the Exchange Act and other applicable laws.
The Issuers shall (x) use their respective reasonable best efforts to cause the
Exchange Offer Registration Statement to be declared effective under the
Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer
open for at least 30 days (or longer if required by applicable law) after the
date that notice of the Exchange Offer is mailed to Holders; and (z) consummate
the Exchange Offer on or prior to the 210th day following the Issue Date;
provided, however, that if such 210th day would otherwise fall on a day that is
not a Business Day, then such Exchange Offer must be consummated not later than
the next succeeding Business Day.



                                      -6-

                  Each Holder (including, without limitation, each Participating
Broker-Dealer) who participates in the Exchange Offer will be required to
represent to the Issuers in writing (which may be contained in the applicable
letter of transmittal) that: (i) any Exchange Notes acquired in exchange for
Registrable Notes tendered are being acquired in the ordinary course of business
of the Person receiving such Exchange Notes, whether or not such recipient is
such Holder itself; (ii) at the time of the commencement or consummation of the
Exchange Offer neither such Holder nor, to the actual knowledge of such Holder,
any other Person receiving Exchange Notes from such Holder has an arrangement or
understanding with any Person to participate in the "distribution" (within the
meaning of the Securities Act) of the Exchange Notes in violation of the
provisions of the Securities Act; (iii) neither the Holder nor, to the actual
knowledge of such Holder, any other Person receiving Exchange Notes from such
Holder is an "affiliate" (as defined in Rule 405) of the Company or, if it is an
affiliate of the Company, it will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable and will
provide information to be included in the Shelf Registration Statement in
accordance with Section 5 hereof in order to have their Notes included in the
Shelf Registration Statement and benefit from the provisions regarding
Additional Interest in Section 4 hereof; (iv) neither such Holder nor, to the
actual knowledge of such Holder, any other Person receiving Exchange Notes from
such Holder is engaging in or intends to engage in a distribution of the
Exchange Notes; and (v) if such Holder is a Participating Broker-Dealer, such
Holder has acquired the Registrable Notes as a result of market-making
activities or other trading activities and that it will comply with the
applicable provisions of the Securities Act (including, but not limited to, the
prospectus delivery requirements thereunder) in connection with any resale of
the Exchange Notes.

                  Upon consummation of the Exchange Offer in accordance with
this Section 2, the provisions of this Agreement shall continue to apply,
mutatis mutandis, solely with respect to Registrable Notes that are Private
Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and
Exchange Notes held by Participating Broker-Dealers, and the Company shall have
no further obligation to register Registrable Notes (other than Private Exchange
Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to
Section 3 hereof.

                  No securities other than the Exchange Notes shall be included
in the Exchange Offer Registration Statement.

                  (b)      The Issuers shall include within the Prospectus
contained in the Exchange Offer Registration Statement a section entitled "Plan
of Distribution," reasonably acceptable to the Initial Purchasers, which shall
contain a summary statement of the positions taken or policies made by the staff
of the SEC with respect to the potential "underwriter" status of any
broker-dealer that is the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange
Offer (a



                                      -7-

 "Participating Broker-Dealer"), whether such positions or policies have
been publicly disseminated by the staff of the SEC or such positions or policies
represent the prevailing views of the staff of the SEC. Such "Plan of
Distribution" section shall also expressly permit, to the extent permitted by
applicable policies and regulations of the SEC, the use of the Prospectus by all
Persons subject to the prospectus delivery requirements of the Securities Act,
including, to the extent permitted by applicable policies and regulations of the
SEC, all Participating Broker-Dealers, and include a statement describing the
means by which Participating Broker-Dealers may resell the Exchange Notes in
compliance with the Securities Act.

                  The Issuers shall use their respective reasonable best efforts
to keep the Exchange Offer Registration Statement effective and to amend and
supplement the Prospectus contained therein in order to permit such Prospectus
to be lawfully delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as is necessary to
comply with applicable law in connection with any resale of the Exchange Notes;
provided, however, that such period shall not be required to exceed 90 days or
such longer period if extended pursuant to the last paragraph of Section 5
hereof (the "Applicable Period").

                  If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Notes acquired by them that have the status of an unsold
allotment in the initial distribution, the Issuers, upon the request of the
Initial Purchasers, shall simultaneously with the delivery of the Exchange Notes
issue and deliver to the Initial Purchasers, in exchange (the "Private
Exchange") for such Notes held by any such Holder, a like principal amount of
notes (the "Private Exchange Notes") of the Company, guaranteed by the
Guarantors, that are identical in all material respects to the Exchange Notes
except for the placement of a restrictive legend on such Private Exchange Notes.
The Private Exchange Notes shall be issued pursuant to the same indenture as the
Exchange Notes and bear the same CUSIP number as the Exchange Notes if permitted
by the CUSIP Service Bureau.

                  In connection with the Exchange Offer, the Issuers shall:

                  (1)      mail, or cause to be mailed, to each Holder of record
         entitled to participate in the Exchange Offer a copy of the Prospectus
         forming part of the Exchange Offer Registration Statement, together
         with an appropriate letter of transmittal and related documents;

                  (2)      use their respective reasonable best efforts to keep
         the Exchange Offer open for not less than 30 days after the date that
         notice of the Exchange Offer is mailed to Holders (or longer if
         required by applicable law);

                  (3)      utilize the services of a depositary for the Exchange
         Offer with an address in the Borough of Manhattan, The City of New
         York;



                                      -8-

                  (4)      permit Holders to withdraw tendered Notes at any time
         prior to the close of business, New York time, on the last Business Day
         on which the Exchange Offer remains open; and

                  (5)      otherwise comply in all material respects with all
         applicable laws, rules and regulations.

                  As soon as practicable after the close of the Exchange Offer
and the Private Exchange, if any, the Issuers shall:

                  (1)      accept for exchange all Registrable Notes validly
         tendered and not validly withdrawn pursuant to the Exchange Offer and
         the Private Exchange, if any;

                  (2)      deliver to the Trustee for cancellation all
         Registrable Notes so accepted for exchange; and

                  (3)      cause the Trustee to authenticate and deliver
         promptly to each Holder of Notes, Exchange Notes or Private Exchange
         Notes, as the case may be, equal in principal amount to the Notes of
         such Holder so accepted for exchange; provided that, in the case of any
         Notes held in global form by a depositary, authentication and delivery
         to such depositary of one or more replacement Notes in global form in
         an equivalent principal amount thereto for the account of such Holders
         in accordance with the Indenture shall satisfy such authentication and
         delivery requirement.

                  The Exchange Offer and the Private Exchange shall not be
subject to any conditions, other than that (i) the Exchange Offer or Private
Exchange, as the case may be, does not violate applicable law or any applicable
interpretation of the staff of the SEC; (ii) no action or proceeding shall have
been instituted or threatened in any court or by any governmental agency which
might materially impair the ability of the Issuers to proceed with the Exchange
Offer or the Private Exchange, and no material adverse development shall have
occurred in any existing action or proceeding with respect to the Issuers; and
(iii) all governmental approvals shall have been obtained, which approvals the
Issuers deem necessary for the consummation of the Exchange Offer or Private
Exchange.

                  The Exchange Notes and the Private Exchange Notes shall be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture, with such changes as are necessary to comply with any
requirements of the SEC to effect or maintain the qualification thereof under
the TIA, and which, in either case, has been qualified under the TIA or is
exempt from such qualification and shall provide that the Exchange Notes shall
not be subject to the transfer restrictions set forth in the Indenture. The
Indenture or such indenture shall provide that the Exchange Notes, the Private
Exchange Notes and the Notes shall vote and consent together on all matters as
one class and that none of the Exchange



                                      -9-

Notes, the Private Exchange Notes or the Notes will have the right to vote or
consent as a separate class on any matter.

                  (c)      If, (i) because of any change in law or in currently
prevailing interpretations of the staff of the SEC, the Issuers are not
permitted to effect the Exchange Offer, (ii) the Exchange Offer is not
consummated within 210 days of the Issue Date; provided, however, that if such
210th day would otherwise fall on a day that is not a Business Day, then such
Exchange Offer must be consummated not later than the next succeeding Business
Day, (iii) the Initial Purchasers or any other holder of Private Exchange Notes
so requests in writing to the Company at any time after the consummation of the
Exchange Offer, or (iv) in the case of any Holder that participates in the
Exchange Offer, such Holder does not receive Exchange Notes on the date of the
exchange that may be sold without restriction under state and federal securities
laws (other than due solely to the status of such Holder as an affiliate of the
Company within the meaning of the Securities Act) and so notifies the Company
within 60 days after the consummation of the Exchange Offer, in the case of each
of clauses (i) to and including (iv) of this sentence, then the Issuers shall
promptly deliver to the Holders and the Trustee written notice thereof (the
"Shelf Notice") and shall file a Shelf Registration pursuant to Section 3
hereof.

         3.       Shelf Registration

                  If at any time a Shelf Notice is delivered as contemplated by
Section 2(c) hereof, then:

                  (a)      Shelf Registration. The Issuers shall as promptly as
         practicable file with the SEC a Registration Statement for an offering
         to be made on a continuous basis pursuant to Rule 415 covering all of
         the Registrable Notes (the "Initial Shelf Registration"). The Issuers
         shall use their respective reasonable best efforts to file with the SEC
         the Initial Shelf Registration on or prior to the applicable Filing
         Date. The Initial Shelf Registration shall be on Form S-1 or another
         appropriate form (as reasonably determined by the Issuers) permitting
         registration of such Registrable Notes for resale by Holders in the
         manner or manners designated by them (including, without limitation,
         one or more underwritten offerings). The Issuers shall not permit any
         securities other than the Registrable Notes to be included in the
         Initial Shelf Registration or any Subsequent Shelf Registration (as
         defined below).

                  The Issuers shall use their respective reasonable best efforts
         to cause the Shelf Registration to be declared effective under the
         Securities Act on or prior to the Effectiveness Date and to keep the
         Initial Shelf Registration continuously effective under the Securities
         Act until the date that is two years from the Issue Date or such
         shorter period ending when all Registrable Notes covered by the Initial
         Shelf Registration have been sold in the manner set forth and as
         contemplated in the Initial Shelf Regis-



                                      -10-

         tration or, if applicable, a Subsequent Shelf Registration (the
         "Effectiveness Period"); provided, however, that the Effectiveness
         Period in respect of the Initial Shelf Registration shall be extended
         to the extent required to permit dealers to comply with the applicable
         prospectus delivery requirements of Rule 174 under the Securities Act
         and as otherwise provided herein and shall be subject to reduction to
         the extent that the applicable provisions of Rule 144(k) are amended or
         revised to reduce the two year holding period set forth therein.
         Notwithstanding anything to the contrary in this Agreement, at any
         time, the Company may delay the filing of any Initial Shelf
         Registration Statement or delay or suspend the effectiveness thereof,
         for a reasonable period of time, but not in excess of an aggregate of
         60 days in any calendar year (a "Shelf Suspension Period"), if the
         Board of Directors of the Company determines reasonably and in good
         faith that the filing of any such Initial Shelf Registration Statement
         or the continuing effectiveness thereof would require the disclosure of
         non-public material information that, in the reasonable judgment of the
         Board of Directors of the Company, would be detrimental to the Company
         if so disclosed or would otherwise materially adversely affect a
         financing, acquisition, disposition, merger or other material
         transaction.

                  (b)      Withdrawal of Stop Orders; Subsequent Shelf
         Registrations. If the Initial Shelf Registration or any Subsequent
         Shelf Registration ceases to be effective for any reason at any time
         during the Effectiveness Period (other than because of the sale of all
         of the Notes registered thereunder), the Issuers shall use their
         respective reasonable best efforts to obtain the prompt withdrawal of
         any order suspending the effectiveness thereof, and in any event shall
         within 30 days of such cessation of effectiveness amend such Shelf
         Registration Statement in a manner to obtain the withdrawal of the
         order suspending the effectiveness thereof, or file an additional Shelf
         Registration Statement pursuant to Rule 415 covering all of the
         Registrable Notes covered by and not sold under the Initial Shelf
         Registration or an earlier Subsequent Shelf Registration (each, a
         "Subsequent Shelf Registration"). If a Subsequent Shelf Registration is
         filed, the Issuers shall use their respective reasonable best efforts
         to cause the Subsequent Shelf Registration to be declared effective
         under the Securities Act as soon as practicable after such filing and
         to keep such subsequent Shelf Registration continuously effective for a
         period equal to the number of days in the Effectiveness Period less the
         aggregate number of days during which the Initial Shelf Registration or
         any Subsequent Shelf Registration was previously continuously
         effective. As used herein the term "Shelf Registration" means the
         Initial Shelf Registration and any Subsequent Shelf Registration.

                  (c)      Supplements and Amendments. The Issuers shall
         promptly supplement and amend the Shelf Registration if required by the
         rules, regulations or instructions applicable to the registration form
         used for such Shelf Registration, if required by the



                                      -11-

         Securities Act, or if reasonably requested by the Holders of a majority
         in aggregate principal amount of the Registrable Notes (or their
         counsel) covered by such Registration Statement with respect to the
         information included therein with respect to one or more of such
         Holders, or by any underwriter of such Registrable Notes with respect
         to the information included therein with respect to such underwriter.

         4.       Additional Interest

                  (a)      The Issuers and the Initial Purchasers agree that the
Holders will suffer damages if the Issuers fail to fulfill their obligations
under Section 2 or Section 3 hereof and that it would not be feasible to
ascertain the extent of such damages with precision. Accordingly, the Issuers
agree to pay, jointly and severally, as liquidated damages, additional interest
on the Notes ("Additional Interest") under the circumstances and to the extent
set forth below (each of which shall be given independent effect):

                  (i)      if (A) neither the Exchange Offer Registration
         Statement nor the Initial Shelf Registration has been filed on or prior
         to the Filing Date applicable thereto or (B) notwithstanding that the
         Issuers have consummated or will consummate the Exchange Offer, the
         Issuers are required to file a Shelf Registration and such Shelf
         Registration is not filed on or prior to the Filing Date applicable
         thereto, then, commencing on the day after any such Filing Date,
         Additional Interest shall accrue on the principal amount of the Notes
         at a rate of 0.50% per annum for the first 90 days immediately
         following such applicable Filing Date, and such Additional Interest
         rate shall increase by an additional 0.50% per annum at the beginning
         of the immediately following 90-day period; or

                  (ii)     if (A) neither the Exchange Offer Registration
         Statement nor the Initial Shelf Registration is declared effective by
         the SEC on or prior to the Effectiveness Date applicable thereto or (B)
         notwithstanding that the Issuers have consummated or will consummate
         the Exchange Offer, the Issuers are required to file a Shelf
         Registration and such Shelf Registration is not declared effective by
         the SEC on or prior to the Effectiveness Date applicable to such Shelf
         Registration, then, commencing on the day after such Effectiveness
         Date, Additional Interest shall accrue on the principal amount of the
         Notes at a rate of 0.50% per annum for the first 90 days immediately
         following the day after such Effectiveness Date, and such Additional
         Interest rate shall increase by an additional 0.50% per annum at the
         beginning of the immediately following 90-day period; or

                  (iii)    if (A) the Issuers have not exchanged Exchange Notes
         for all Notes validly tendered in accordance with the terms of the
         Exchange Offer on or prior to the 210th day after the Issue Date;
         provided, however, that if such 210th day would otherwise fall on a day
         that is not a Business Day, then such Exchange Offer must be
         con-



                                      -12-

         summated not later than the next succeeding Business Day' or (B) if
         applicable, a Shelf Registration has been declared effective and such
         Shelf Registration ceases to be effective at any time during the
         Effectiveness Period, then Additional Interest shall accrue on the
         principal amount of the Notes at a rate of 0.50% per annum for the
         first 90 days commencing on the (x) 211th day after the Issue Date, in
         the case of (A) above, or (y) the day such Shelf Registration ceases to
         be effective in the case of (B) above, and such Additional Interest
         rate shall increase by an additional 0.50% per annum at the beginning
         of the immediately following 90-day period;

provided, however, that the Additional Interest rate on the Notes may not accrue
under more than one of the foregoing clauses (i) - (iii) at any one time and at
no time shall the aggregate amount of Additional Interest accruing exceed in the
aggregate 1.0% per annum; provided, further, however, that (1) upon the filing
of the applicable Exchange Offer Registration Statement or the applicable Shelf
Registration as required hereunder (in the case of clause (i) above of this
Section 4), (2) upon the effectiveness of the Exchange Offer Registration
Statement or the applicable Shelf Registration Statement as required hereunder
(in the case of clause (ii) of this Section 4), or (3) upon the exchange of the
Exchange Notes for all Notes tendered (in the case of clause (iii)(A) of this
Section 4), or upon the effectiveness of the applicable Shelf Registration
Statement which had ceased to remain effective (in the case of (iii)(B) of this
Section 4), Additional Interest on the Notes in respect of which such events
relate as a result of such clause (or the relevant subclause thereof), as the
case may be, shall cease to accrue. Notwithstanding any other provision of this
Section 4, the Issuer shall not be obligated to pay Additional Interest provided
in Sections 4(a)(i)(B), 4(a)(ii)(B) or 4(a)(iii)(B) during a Shelf Suspension
Period permitted by Section 3(a) hereof.

                  (b)      The Issuers shall notify the Trustee within one
Business Day after each and every date on which an event occurs in respect of
which Additional Interest is required to be paid (an "Event Date"). Any amounts
of Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this
Section 4 will be payable in cash semiannually on each March 15 and September 15
(to the holders of record on the March 1 and September 1 immediately preceding
such dates), commencing with the first such date occurring after any such
Additional Interest commences to accrue. The amount of Additional Interest will
be determined by multiplying the applicable Additional Interest rate by the
principal amount of the Registrable Notes, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360 day year
comprised of twelve 30 day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.



                                      -13-

         5.       Registration Procedures

                  In connection with the filing of any Registration Statement
pursuant to Section 2 or 3 hereof, the Issuers shall effect such registrations
to permit the sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Company hereunder each
of the Issuers shall:

                  (a)      Prepare and file with the SEC prior to the applicable
         Filing Date a Registration Statement or Registration Statements as
         prescribed by Section 2 or 3 hereof, and use their respective
         reasonable best efforts to cause each such Registration Statement to
         become effective and remain effective as provided herein; provided,
         however, that if (1) such filing is pursuant to Section 3 hereof or (2)
         a Prospectus contained in the Exchange Offer Registration Statement
         filed pursuant to Section 2 hereof is required to be delivered under
         the Securities Act by any Participating Broker-Dealer who seeks to sell
         Exchange Notes during the Applicable Period relating thereto from whom
         the Company has received prior written notice that it will be a
         Participating Broker-Dealer in the Exchange Offer, before filing any
         Registration Statement or Prospectus or any amendments or supplements
         thereto, the Issuers shall furnish to and afford the Holders of the
         Registrable Notes covered by such Registration Statement (with respect
         to a Registration Statement filed pursuant to Section 3 hereof) or each
         such Participating Broker-Dealer (with respect to any such Registration
         Statement), as the case may be, their counsel and the managing
         underwriters, if any, a reasonable opportunity to review copies of all
         such documents (including copies of any documents to be incorporated by
         reference therein and all exhibits thereto) proposed to be filed (in
         each case at least five business days prior to such filing). The
         Issuers shall not file any Registration Statement or Prospectus or any
         amendments or supplements thereto if the Holders of a majority in
         aggregate principal amount of the Registrable Notes covered by such
         Registration Statement, their counsel, or the managing underwriters, if
         any, shall reasonably object on a timely basis.

                  (b)      Prepare and file with the SEC such amendments and
         post-effective amendments to each Shelf Registration Statement or
         Exchange Offer Registration Statement, as the case may be, as may be
         necessary to keep such Registration Statement continuously effective
         for the Effectiveness Period, the Applicable Period or until
         consummation of the Exchange Offer, as the case may be; cause the
         related Prospectus to be supplemented by any Prospectus supplement
         required by applicable law, and as so supplemented to be filed pursuant
         to Rule 424; and comply in all material respects with the provisions of
         the Securities Act and the Exchange Act applicable to it with respect
         to the disposition of all securities covered by such Registration
         Statement as so amended or in such Prospectus as so supplemented and
         with respect to the sub-



                                      -14-

         sequent resale of any securities being sold by an Participating
         Broker-Dealer covered by any such Prospectus. The Company shall be
         deemed not to have used its reasonable best efforts to keep a
         Registration Statement effective if the Company voluntarily takes any
         action that would result in selling Holders of the Registrable Notes
         covered thereby or Participating Broker-Dealers seeking to sell
         Exchange Notes not being able to sell such Registrable Notes or such
         Exchange Notes during that period unless such action is required by
         applicable law or permitted by this Agreement.

                  (c)      If (1) a Shelf Registration is filed pursuant to
         Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
         Registration Statement filed pursuant to Section 2 hereof is required
         to be delivered under the Securities Act by any Participating
         Broker-Dealer who seeks to sell Exchange Notes during the Applicable
         Period relating thereto from whom the Company has received written
         notice that it will be a Participating Broker-Dealer in the Exchange
         Offer, notify the selling Holders of Registrable Notes (with respect to
         a Registration Statement filed pursuant to Section 3 hereof), or each
         such Participating Broker-Dealer (with respect to any such Registration
         Statement), as the case may be, their counsel and the managing
         underwriters, if any, as promptly as possible, and, if requested by any
         such Person, confirm such notice in writing, (i) when a Prospectus or
         any Prospectus supplement or post-effective amendment has been filed,
         and, with respect to a Registration Statement or any post-effective
         amendment, when the same has become effective under the Securities Act
         (including in such notice a written statement that any Holder may, upon
         request, obtain, at the sole expense of the Company, one conformed copy
         of such Registration Statement or post-effective amendment including
         financial statements and schedules, documents incorporated or deemed to
         be incorporated by reference and exhibits), (ii) of the issuance by the
         SEC of any stop order suspending the effectiveness of a Registration
         Statement or of any order preventing or suspending the use of any
         preliminary prospectus or the initiation of any proceedings for that
         purpose, (iii) if at any time when a prospectus is required by the
         Securities Act to be delivered in connection with sales of the
         Registrable Notes or resales of Exchange Notes by Participating
         Broker-Dealers the representations and warranties of the Issuers
         contained in any agreement (including any underwriting agreement)
         contemplated by Section 5(n) hereof cease to be true and correct in all
         material respects, (iv) of the receipt by any Issuer of any
         notification with respect to the suspension of the qualification or
         exemption from qualification of a Registration Statement or any of the
         Registrable Notes or the Exchange Notes to be sold by any Participating
         Broker-Dealer for offer or sale in any jurisdiction, or the initiation
         or threatening of any proceeding for such purpose, (v) of the happening
         of any event, the existence of any condition or any information
         becoming known that makes any statement made in such Registration
         Statement or related Prospectus or any document incorporated or deemed
         to be incorporated therein by reference untrue in any material respect
         or that requires the making of any changes in or



                                      -15-

         amendments or supplements to such Registration Statement, Prospectus or
         documents so that, in the case of the Registration Statement, it will
         not contain any untrue statement of a material fact or omit to state
         any material fact required to be stated therein or necessary to make
         the statements therein not misleading, and that in the case of the
         Prospectus, it will not contain any untrue statement of a material fact
         or omit to state any material fact required to be stated therein or
         necessary to make the statements therein, in the light of the
         circumstances under which they were made, not misleading, and (vi) of
         the Issuers' determination that a post-effective amendment to a
         Registration Statement would be appropriate.

                  (d)      Use their respective reasonable best efforts to
         prevent the issuance of any order suspending the effectiveness of a
         Registration Statement or of any order preventing or suspending the use
         of a Prospectus or suspending the qualification (or exemption from
         qualification) of any of the Registrable Notes or the Exchange Notes to
         be sold by any Participating Broker-Dealer, for sale in any
         jurisdiction, and, if any such order is issued, to use their respective
         reasonable best efforts to obtain the withdrawal of any such order at
         the earliest practicable moment.

                  (e)      If a Shelf Registration is filed pursuant to Section
         3 and if requested during the Effectiveness Period by the managing
         underwriter or underwriters (if any), the Holders of a majority in
         aggregate principal amount of the Registrable Notes being sold in
         connection with an underwritten offering or any Participating
         Broker-Dealer, (i) as promptly as practicable incorporate in a
         prospectus supplement or post-effective amendment such information as
         the managing underwriter or underwriters (if any), such Holders, any
         Participating Broker-Dealer or counsel for any of them reasonably
         request to be included therein, (ii) make all required filings of such
         prospectus supplement or such post-effective amendment as soon as
         practicable after the Company has received notification of the matters
         to be incorporated in such prospectus supplement or post-effective
         amendment, and (iii) supplement or make amendments to such Registration
         Statement; provided, however, that the Issuers shall not be required to
         take any action hereunder that would, in the opinion of counsel to the
         Issuers, violate applicable laws.

                  (f)      If (1) a Shelf Registration is filed pursuant to
         Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
         Registration Statement filed pursuant to Section 2 hereof is required
         to be delivered under the Securities Act by any Participating
         Broker-Dealer who seeks to sell Exchange Notes during the Applicable
         Period, furnish to each selling Holder of Registrable Notes (with
         respect to a Registration Statement filed pursuant to Section 3 hereof)
         and to each such Participating Broker-Dealer who so requests (with
         respect to any such Registration Statement) and to their respective
         counsel and each managing underwriter, if any, at the sole expense of
         the



                                      -16-

         Company, one conformed copy of the Registration Statement or
         Registration Statements and each post-effective amendment thereto,
         including financial statements and schedules, and, if requested, all
         documents incorporated or deemed to be incorporated therein by
         reference and all exhibits.

                  (g)      If (1) a Shelf Registration is filed pursuant to
         Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
         Registration Statement filed pursuant to Section 2 hereof is required
         to be delivered under the Securities Act by any Participating
         Broker-Dealer who seeks to sell Exchange Notes during the Applicable
         Period, deliver to each selling Holder of Registrable Notes (with
         respect to a Registration Statement filed pursuant to Section 3
         hereof), or each such Participating Broker-Dealer (with respect to any
         such Registration Statement), as the case may be, their respective
         counsel, and the underwriters, if any, at the sole expense of the
         Company, as many copies of the Prospectus or Prospectuses (including
         each form of preliminary prospectus) and each amendment or supplement
         thereto and any documents incorporated by reference therein as such
         Persons may reasonably request; and, subject to the last paragraph of
         this Section 5, the Issuers hereby consent to the use (other than
         during any Shelf Suspension Period) of such Prospectus and each
         amendment or supplement thereto by each of the selling Holders of
         Registrable Notes or each such Participating Broker-Dealer, as the case
         may be, and the underwriters or agents, if any, and dealers, if any, in
         connection with the offering and sale of the Registrable Notes covered
         by, or the sale by Participating Broker-Dealers of the Exchange Notes
         pursuant to, such Prospectus and any amendment or supplement thereto.

                  (h)      Prior to any public offering of Registrable Notes or
         any delivery of a Prospectus contained in the Exchange Offer
         Registration Statement by any Participating Broker-Dealer who seeks to
         sell Exchange Notes during the Applicable Period, use their respective
         reasonable best efforts to register or qualify, and to cooperate with
         the selling Holders of Registrable Notes or each such Participating
         Broker-Dealer, as the case may be, the managing underwriter or
         underwriters, if any, and their respective counsel in connection with
         the registration or qualification (or exemption from such registration
         or qualification) of such Registrable Notes for offer and sale under
         the securities or Blue Sky laws of such jurisdictions within the United
         States as any selling Holder, Participating Broker-Dealer, or the
         managing underwriter or underwriters reasonably request in writing;
         provided, however, that where Exchange Notes held by Participating
         Broker-Dealers or Registrable Notes are offered other than through an
         underwritten offering, the Issuers agree to cause their counsel to
         perform Blue Sky investigations and file registrations and
         qualifications required to be filed pursuant to this Section 5(h), keep
         each such registration or qualification (or exemption therefrom)
         effective during the period such Registration Statement is required to
         be kept effective and do any and all other acts or things reasonably
         necessary or advisable to enable the



                                      -17-

         disposition in such jurisdictions of the Exchange Notes held by
         Participating Broker-Dealers or the Registrable Notes covered by the
         applicable Registration Statement; provided, however, that no Issuer
         shall be required to (A) qualify generally to do business in any
         jurisdiction where it is not then so qualified, (B) take any action
         that would subject it to general service of process in any such
         jurisdiction where it is not then so subject or (C) subject itself to
         taxation in excess of a nominal dollar amount in any such jurisdiction
         where it is not then so subject.

                  (i)      If a Shelf Registration is filed pursuant to Section
         3 hereof, cooperate with the selling Holders of Registrable Notes and
         the managing underwriter or underwriters, if any, to facilitate the
         timely preparation and delivery of certificates representing
         Registrable Notes to be sold, which certificates shall not bear any
         restrictive legends and shall be in a form eligible for deposit with
         The Depository Trust Company; and enable such Registrable Notes to be
         in such denominations (subject to applicable requirements contained in
         the Indenture) and registered in such names as the managing underwriter
         or underwriters, if any, or Holders may request.

                  (j)      Use their respective reasonable best efforts to cause
         the Registrable Notes covered by the Registration Statement to be
         registered with or approved by such other governmental agencies or
         authorities as may be necessary to enable the seller or sellers thereof
         or the underwriter or underwriters, if any, to consummate the
         disposition of such Registrable Notes, except as may be required solely
         as a consequence of the nature of such selling Holder's business, in
         which case the Issuers will cooperate in all reasonable respects with
         the filing of such Registration Statement and the granting of such
         approvals.

                  (k)      If (1) a Shelf Registration is filed pursuant to
         Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
         Registration Statement filed pursuant to Section 2 hereof is required
         to be delivered under the Securities Act by any Participating
         Broker-Dealer who seeks to sell Exchange Notes during the Applicable
         Period, upon the occurrence of any event contemplated by paragraph
         5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare and
         (subject to Section 5(a) hereof) file with the SEC, at the sole expense
         of the Company, a supplement or post-effective amendment to the
         Registration Statement or a supplement to the related Prospectus or any
         document incorporated or deemed to be incorporated therein by
         reference, or file any other required document so that, as thereafter
         delivered to the purchasers of the Registrable Notes being sold
         thereunder (with respect to a Registration Statement filed pursuant to
         Section 3 hereof) or to the purchasers of the Exchange Notes to whom
         such Prospectus will be delivered by a Participating Broker-Dealer
         (with respect to any such Registration Statement), any such Prospectus
         will not contain an untrue statement of a material fact or omit to
         state a material fact required to be stated therein or necessary to
         make



                                      -18-

         the statements therein, in the light of the circumstances under which
         they were made, not misleading.

                  (l)      Use their respective reasonable best efforts to cause
         the Registrable Notes covered by a Registration Statement or the
         Exchange Notes, as the case may be, to be rated with the appropriate
         rating agencies, if so requested by the Holders of a majority in
         aggregate principal amount of Registrable Notes covered by such
         Registration Statement or the Exchange Notes, as the case may be, or
         the managing underwriter or underwriters, if any.

                  (m)      Prior to the effective date of the first Registration
         Statement relating to the Registrable Notes, (i) provide the Trustee
         with certificates for the Registrable Notes in a form eligible for
         deposit with The Depository Trust Company and (ii) provide a CUSIP
         number for the Registrable Notes.

                  (n)      In connection with any underwritten offering of
         Registrable Notes pursuant to a Shelf Registration, enter into an
         underwriting agreement as is customary in underwritten offerings of
         debt securities similar to the Notes, and take all such other actions
         as are reasonably requested by the managing underwriter or underwriters
         in order to expedite or facilitate the registration or the disposition
         of such Registrable Notes and, in such connection, (i) make such
         representations and warranties to, and covenants with, the underwriters
         with respect to the business of the Issuers (including any acquired
         business, properties or entity, if applicable), and the Registration
         Statement, Prospectus and documents, if any, incorporated or deemed to
         be incorporated by reference therein, in each case, as are customarily
         made by issuers to underwriters in underwritten offerings of debt
         securities similar to the Notes, and confirm the same in writing if and
         when requested; (ii) obtain the written opinions of counsel to the
         Issuers, and written updates thereof in form, scope and substance
         reasonably satisfactory to the managing underwriter or underwriters,
         addressed to the underwriters covering the matters customarily covered
         in opinions reasonably requested in underwritten offerings; (iii)
         obtain "cold comfort" letters and updates thereof in form, scope and
         substance reasonably satisfactory to the managing underwriter or
         underwriters from the independent certified public accountants of the
         Issuers (and, if necessary, any other independent certified public
         accountants of the Issuers, or of any business acquired by the Issuers,
         for which financial statements and financial data are, or are required
         to be, included or incorporated by reference in the Registration
         Statement), addressed to each of the underwriters, such letters to be
         in customary form and covering matters of the type customarily covered
         in "cold comfort" letters in connection with underwritten offerings of
         debt securities similar to the Notes; and (iv) if an underwriting
         agreement is entered into, the same shall contain indemnification
         provisions and procedures no less favorable to the sellers and
         underwriters, if any, than those set forth in Section 7 hereof



                                      -19-

         (or such other provisions and procedures reasonably acceptable to
         Holders of a majority in aggregate principal amount of Registrable
         Notes covered by such Registration Statement and the managing
         underwriter or underwriters or agents, if any). The above shall be done
         at each closing under such underwriting agreement, or as and to the
         extent required thereunder.

                  (o)      If (1) a Shelf Registration is filed pursuant to
         Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
         Registration Statement filed pursuant to Section 2 hereof is required
         to be delivered under the Securities Act by any Participating
         Broker-Dealer who seeks to sell Exchange Notes during the Applicable
         Period, make available for inspection by any Initial Purchaser, any
         selling Holder of such Registrable Notes being sold (with respect to a
         Registration Statement filed pursuant to Section 3 hereof), or each
         such Participating Broker-Dealer, as the case may be, any underwriter
         participating in any such disposition of Registrable Notes, if any, and
         any attorney, accountant or other agent retained by any such selling
         Holder or each such Participating Broker-Dealer (with respect to any
         such Registration Statement), as the case may be, or underwriter (any
         such Initial Purchasers, Holders, Participating Broker-Dealers,
         underwriters, attorneys, accountants or agents, collectively, the
         "Inspectors"), upon written request, at the offices where normally
         kept, during reasonable business hours, all pertinent financial and
         other records, pertinent corporate documents and instruments of the
         Company and subsidiaries of the Company (collectively, the "Records"),
         as shall be reasonably necessary to enable them to exercise any
         applicable due diligence responsibilities, and cause the officers,
         directors and employees of the Company and any of its subsidiaries to
         supply all information ("Information") reasonably requested by any such
         Inspector in connection with such due diligence responsibilities. Each
         Inspector shall agree in writing that it will keep the Records and
         Information confidential and that it will not disclose any of the
         Records or Information that the Company determines, in good faith, to
         be confidential and notifies the Inspectors in writing are confidential
         unless (i) the disclosure of such Records or Information is necessary
         to avoid or correct a misstatement or omission in such Registration
         Statement or Prospectus, (ii) the release of such Records or
         Information is ordered pursuant to a subpoena or other order from a
         court of competent jurisdiction, (iii) disclosure of such Records or
         Information is necessary or advisable, in the opinion of counsel for
         any Inspector, in connection with any action, claim, suit or
         proceeding, directly or indirectly, involving or potentially involving
         such Inspector and arising out of, based upon, relating to, or
         involving this Agreement or the Purchase Agreement, or any transactions
         contemplated hereby or thereby or arising hereunder or thereunder, or
         (iv) the information in such Records or Information has been made
         generally available to the public other than by an Inspector or an
         "affiliate" (as defined in Rule 405) thereof; provided, however, that
         prior notice shall be provided as soon as practicable to the Company of
         the potential disclosure of any information by such Inspector pursuant
         to



                                      -20-

         clauses (i) or (ii) of this sentence to permit the Company to obtain a
         protective order (or waive the provisions of this paragraph (o)) and
         that such Inspector shall take such actions as are reasonably necessary
         to protect the confidentiality of such information (if practicable) to
         the extent such action is otherwise not inconsistent with, an
         impairment of or in derogation of the rights and interests of the
         Holder or any Inspector.

                  (p)      Provide an indenture trustee for the Registrable
         Notes or the Exchange Notes, as the case may be, and cause the
         Indenture or the trust indenture provided for in Section 2(a) hereof,
         as the case may be, to be qualified under the TIA not later than the
         effective date of the first Registration Statement relating to the
         Registrable Notes; and in connection therewith, cooperate with the
         trustee under any such indenture and the Holders of the Registrable
         Notes, to effect such changes (if any) to such indenture as may be
         required for such indenture to be so qualified in accordance with the
         terms of the TIA; and execute, and use their respective reasonable best
         efforts to cause such trustee to execute, all documents as may be
         required to effect such changes, and all other forms and documents
         required to be filed with the SEC to enable such indenture to be so
         qualified in a timely manner.

                  (q)      Comply in all material respects with all applicable
         rules and regulations of the SEC and make generally available to its
         securityholders with regard to any applicable Registration Statement, a
         consolidated earning statement satisfying the provisions of Section
         11(a) of the Securities Act and Rule 158 thereunder (or any similar
         rule promulgated under the Securities Act) no later than 45 days after
         the end of any fiscal quarter (or 90 days after the end of any 12-month
         period if such period is a fiscal year) (i) commencing at the end of
         any fiscal quarter in which Registrable Notes are sold to underwriters
         in a firm commitment or best efforts underwritten offering and (ii) if
         not sold to underwriters in such an offering, commencing on the first
         day of the first fiscal quarter of the Company, after the effective
         date of a Registration Statement, which statements shall cover said
         12-month periods.

                  (r)      Upon consummation of the Exchange Offer or a Private
         Exchange, if requested by the Holders of a majority in principal amount
         of the Notes, obtain an opinion of counsel to the Issuers, in a form
         customary for underwritten transactions, addressed to the Trustee for
         the benefit of all Holders of Registrable Notes participating in the
         Exchange Offer or the Private Exchange, as the case may be, that the
         Exchange Notes or Private Exchange Notes, as the case may be, the
         related guarantee and the related indenture constitute legal, valid and
         binding obligations of the Issuers, enforceable against the Issuers in
         accordance with their respective terms, subject to customary exceptions
         and qualifications. If the Exchange Offer or a Private Exchange is to
         be consummated, upon delivery of the Registrable Notes by Holders to
         the Company (or to such other Person as directed by the Company), in
         exchange for the Exchange Notes



                                      -21-

         or the Private Exchange Notes, as the case may be, the Issuers shall
         mark, or cause to be marked, on such Registrable Notes that such
         Registrable Notes are being cancelled in exchange for the Exchange
         Notes or the Private Exchange Notes, as the case may be; in no event
         shall such Registrable Notes be marked as paid or otherwise satisfied.

                  (s)      Cooperate with each seller of Registrable Notes
         covered by any Registration Statement and each underwriter, if any,
         participating in the disposition of such Registrable Notes and their
         respective counsel in connection with any filings required to be made
         with the National Association of Securities Dealers, Inc. (the "NASD").

                  (t)      Use their respective reasonable best efforts to take
         all other steps necessary to effect the registration of the Exchange
         Notes and/or Registrable Notes covered by a Registration Statement
         contemplated hereby.

                  The Company may require each seller of Registrable Notes as to
which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable Notes
as the Company may, from time to time, reasonably request. The Company may
exclude from such registration the Registrable Notes of any seller so long as
such seller fails to furnish such information within a reasonable time after
receiving such request and the failure to include any such seller shall not be
deemed to be a default hereunder. Each seller as to which any Shelf Registration
is being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such seller not materially misleading.

                  If any such Registration Statement refers to any Holder by
name or otherwise as the holder of any securities of any Issuer, then such
Holder shall have the right to require (i) the insertion therein of language, in
form and substance reasonably satisfactory to such Holder, to the effect that
the holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Issuers, or (ii) in
the event that such reference to such Holder by name or otherwise is not
required by the Securities Act or any similar federal statute then in force, the
deletion of the reference to such Holder in any amendment or supplement to the
Registration Statement filed or prepared subsequent to the time that such
reference ceases to be required.

                  Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by its acquisition of such Registrable Notes or Exchange
Notes to be sold by such Participating Broker-Dealer, as the case may be, that,
upon actual receipt of any notice from the Company of a Shelf Suspension Period
or the happening of any event of the kind described in Section 5(c)(ii),
5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such Holder will forthwith discontinue
disposition of such Registrable Notes covered by such Registration Statement or
Prospectus or Ex-



                                      -22-

change Notes to be sold by such Holder or Participating Broker-Dealer, as the
case may be, until the end of such Shelf Suspension Period or such Holder's or
Participating Broker-Dealer's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(k) hereof, or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. In the event that the Issuers shall give any such notice,
each of the Applicable Period and the Effectiveness Period shall be extended by
the number of days during such periods from and including the date of the giving
of such notice to and including the date when each seller of Registrable Notes
covered by such Registration Statement or Exchange Notes to be sold by such
Participating Broker-Dealer, as the case may be, shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof or (y) the Advice.

         6.       Registration Expenses

                  All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers shall be borne by the Company,
whether or not the Exchange Offer Registration Statement or any Shelf
Registration Statement is filed or becomes effective or the Exchange Offer is
consummated, including, without limitation, (i) all registration and filing fees
(including, without limitation, (A) fees with respect to filings required to be
made with the NASD in connection with an underwritten offering and (B) fees and
expenses of compliance with state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of counsel in connection
with Blue Sky qualifications of the Registrable Notes or Exchange Notes and
determination of the eligibility of the Registrable Notes or Exchange Notes for
investment under the laws of such jurisdictions (x) where the holders of
Registrable Notes are located, in the case of the Exchange Notes, or (y) as
provided in Section 5(h) hereof, in the case of Registrable Notes or Exchange
Notes to be sold by a Participating Broker-Dealer during the Applicable
Period)), (ii) printing expenses, including, without limitation, expenses of
printing certificates for Registrable Notes or Exchange Notes in a form eligible
for deposit with The Depository Trust Company and of printing prospectuses if
the printing of prospectuses is requested by the managing underwriter or
underwriters, if any, by the Holders of a majority in aggregate principal amount
of the Registrable Notes included in any Registration Statement or in respect of
Registrable Notes or Exchange Notes to be sold by any Participating
Broker-Dealer during the Applicable Period, as the case may be, (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Issuers and, in the case of a Shelf Registration, reasonable fees and
disbursements of one special counsel for all of the sellers of Registrable Notes
(exclusive of any counsel retained pursuant to Section 7 hereof), (v) fees and
disbursements of all independent certified public accountants referred to in
Section 5(n)(iii) hereof (including, without limitation, the expenses of any
"cold comfort" letters required by or incident to such performance), (vi)
Securities Act liability insurance, if the Issuers desire such insurance, (vii)
fees and expenses of all other Persons retained by the



                                      -23-

Issuers, (viii) internal expenses of the Issuers (including, without limitation,
all salaries and expenses of officers and employees of the Issuers performing
legal or accounting duties), (ix) the expense of any annual audit, (x) any fees
and expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, and the obtaining of a rating of the
securities, in each case, if applicable and (xi) the expenses relating to
printing, word processing and distributing all Registration Statements,
underwriting agreements, indentures and any other documents necessary in order
to comply with this Agreement. Notwithstanding the foregoing or anything to the
contrary in this Agreement, each Holder shall pay all underwriting discounts and
commissions of any underwriters with respect to any Registrable Notes sold by or
on behalf of it.

                  7.       Indemnification and Contribution. (a) Each of the
Issuers agree jointly and severally, to indemnify and hold harmless each Holder
of Registrable Notes and each Participating Broker-Dealer selling Exchange Notes
during the Applicable Period, and each Person, if any, who controls such Person
or its affiliates within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act (each, a "Participant") against any losses, claims, damages or
liabilities to which any Participant may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as any such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon:

                  (i)      any untrue statement or alleged untrue statement made
         by any Issuer contained in any application or any other document or any
         amendment or supplement thereto executed by any Issuer based upon
         written information furnished by or on behalf of any Issuer filed in
         any jurisdiction in order to qualify the Notes under the securities or
         "Blue Sky" laws thereof or filed with the SEC or any securities
         association or securities exchange (each, an "Application");

                  (ii)     any untrue statement or alleged untrue statement of
         any material fact contained in any Registration Statement (or any
         amendment thereto) or Prospectus (as amended or supplemented if any of
         the Issuers shall have furnished any amendments or supplements thereto)
         or any preliminary prospectus; or

                  (iii)    the omission or alleged omission to state, in any
         Registration Statement (or any amendment thereto) or Prospectus (as
         amended or supplemented if any of the Issuers shall have furnished any
         amendments or supplements thereto) or any preliminary prospectus or any
         Application or any other document or any amendment or supplement
         thereto, a material fact required to be stated therein or necessary to
         make the statements therein not misleading;

                  and will reimburse, as incurred, the Participant for any legal
or other expenses incurred by the Participant in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; pro-



                                      -24-

vided, however, none of the Issuers will be liable in any such case to the
extent that any such loss, claim, damage, or liability arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in any Registration Statement (or any amendment thereto) or
Prospectus (as amended or supplemented if any of the Issuers shall have
furnished any amendments or supplements thereto) or any preliminary prospectus
or Application or any amendment or supplement thereto in reliance upon and in
conformity with information relating to any Participant furnished to the Issuers
by such Participant specifically for use therein and provided, further, that
with respect to any untrue statement or omission or alleged untrue statement or
omission made in the prospectus, or any amendment or supplement thereto, or any
preliminary prospectus relating to a Shelf Registration Statement, the indemnity
contained in this Section 7 shall not inure to the benefit of any Participant
from whom the Person asserting any such loss, claim, damage or liability
purchased the Notes concerned to the extent that a prospectus relating to such
Notes was required to be delivered to such Person, and there was not given or
sent to such Person, at or prior to the written confirmation of the sale of such
Notes to such Person, a copy of the final prospectus (in the case of any such
preliminary prospectus) or a prospectus supplement (in any other case) if the
Company had previously furnished copies thereof to such Participant, and such
untrue statement or omission or alleged untrue statement or omission was
corrected in such final prospectus or prospectus amendment or supplement. The
indemnity provided for in this Section 7 will be in addition to any liability
that the Issuers may otherwise have to the indemnified parties. The Issuers
shall not be liable under this Section 7 for any settlement of any claim or
action effected without their prior written consent, which shall not be
unreasonably withheld.

                  (b)      Each Participant, severally and not jointly, agrees
to indemnify and hold harmless the Issuers, their directors, their officers and
each person, if any, who controls the Issuers within the meaning of Section 15
of the Act or Section 20 of the Exchange Act against any losses, claims, damages
or liabilities to which the Issuers or any such director, officer or controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement or
Prospectus, any amendment or supplement thereto, or any preliminary prospectus,
or (ii) the omission or the alleged omission to state therein a material fact
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Participant, furnished to
the Issuers by the Participant, specifically for use therein; and subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any reasonable legal or other expenses incurred by the Issuers or any
such director, officer or controlling person in connection with investigating or
defending against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action in respect thereof. The indemnity
provided for in this Section 7 will be in addition to



                                      -25-

any liability that the Participants may otherwise have to the indemnified
parties. The Participants shall not be liable under this Section 7 for any
settlement of any claim or action effected without their consent, which shall
not be unreasonably withheld. The Issuers shall not, without the prior written
consent of such Participant, effect any settlement or compromise of any pending
or threatened proceeding in respect of which such Participant is or could have
been a party, or indemnity could have been sought hereunder by such Participant,
unless such settlement (A) includes an unconditional written release of such
Participant, in form and substance reasonably satisfactory to such Participant,
from all liability on claims that are the subject matter of such proceeding and
(B) does not include any statement as to an admission of fault, culpability or
failure to act by or on behalf of such Participant.

                  (c)      Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action for which such
indemnified party is entitled to indemnification under this Section 7, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party of the
commencement thereof in writing; but the omission to so notify the indemnifying
party (i) will not relieve it from any liability under paragraph (a) or (b)
above unless and to the extent such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraphs (a) and
(b) above. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 7 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall



                                      -26-

have employed separate counsel in accordance with the proviso to the immediately
preceding sentence (it being understood, however, that in connection with such
action the indemnifying party shall not be liable for the expenses of more than
one separate counsel (in addition to local counsel) in any one action or
separate but substantially similar actions in the same jurisdiction arising out
of the same general allegations or circumstances, designated by Participants who
sold a majority in interest of the Registrable Notes and Exchange Notes sold by
all such Participants in the case of paragraph (a) of this Section 7 or the
Issuers in the case of paragraph (b) of this Section 7, representing the
indemnified parties under such paragraph (a) or paragraph (b), as the case may
be, who are parties to such action or actions) or (ii) the indemnifying party
has authorized in writing the employment of counsel for the indemnified party at
the expense of the indemnifying party. All fees and expenses reimbursed pursuant
to this paragraph (c) shall be reimbursed as they are incurred. After such
notice from the indemnifying party to such indemnified party, the indemnifying
party will not be liable for the costs and expenses of any settlement of such
action effected by such indemnified party without the prior written consent of
the indemnifying party (which consent shall not be unreasonably withheld),
unless such indemnified party waived in writing its rights under this Section 7,
in which case the indemnified party may effect such a settlement without such
consent.

                  (d)      In circumstances in which the indemnity agreement
provided for in the preceding paragraphs of this Section 7 is unavailable to, or
insufficient to hold harmless, an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Notes or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, not only such relative benefits but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by the Company on
the one hand and such Participant on the other shall be deemed to be in the same
proportion as the total proceeds from the offering (before deducting expenses)
of the Notes received by the Company bear to the total net profit received by
such Participant in connection with the sale of the Notes. The relative fault of
the parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand, or the Participants on the other, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission or alleged statement or omission, and any other equitable
considerations appropriate in the circumstances. The parties agree that it would
not be equitable if the amount of such contribution



                                      -27-

were determined by pro rata or per capita allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to in the first sentence of this paragraph (d). Notwithstanding any other
provision of this paragraph (d), no Participant shall be obligated to make
contributions hereunder that in the aggregate exceed the total net profit
received by such Participant in connection with the sale of the Notes, less the
aggregate amount of any damages that such Participant has otherwise been
required to pay by reason of the untrue or alleged untrue statements or the
omissions or alleged omissions to state a material fact, and no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls a Participant within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
the Participants, and each director of the Issuers, each officer of the Issuers
and each person, if any, who controls the Issuers within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Issuers.

         8.       Rules 144 and 144A

                  The Issuers covenant and agree that they will file the reports
required to be filed by them under the Securities Act and the Exchange Act and
the rules and regulations adopted by the SEC thereunder in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act and,
if at any time the Company or any Guarantor is not required to file such
reports, the Company or such Guarantor, as the case may be, will, upon the
request of any Holder or beneficial owner of Registrable Notes, make available
such information necessary to permit sales pursuant to Rule 144A. The Issuers
further covenant and agree, for so long as any Registrable Notes remain
outstanding that they will take such further action as any Holder of Registrable
Notes may reasonably request, all to the extent required from time to time to
enable such holder to sell Registrable Notes without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144(k)
under the Securities Act and Rule 144A.

         9.       Underwritten Registrations

                  If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority in aggregate principal amount of such
Registrable Notes included in such offering and shall be reasonably acceptable
to the Company.

                  No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder



                                      -28-

to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.

         10.      Miscellaneous

                  (a)      No Inconsistent Agreements. None of the Issuers has,
as of the date hereof, and none of the Issuers shall, after the date of this
Agreement, enter into any agreement with respect to any of its securities that
is inconsistent with the rights granted to the Holders of Registrable Notes in
this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Issuers' other issued
and outstanding securities under any such agreements. None of the Issuers will
enter into any agreement with respect to any of their securities that will grant
to any Person piggy-back registration rights with respect to any Registration
Statement.

                  (b)      Adjustments Affecting Registrable Notes. The Issuers
shall not, directly or indirectly, take any action with respect to the
Registrable Notes as a class that would adversely affect the ability of the
Holders of Registrable Notes to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.

                  (c)      Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, otherwise than with
the prior written consent of (I) the Issuers, and (II)(A) the Holders of not
less than a majority in aggregate principal amount of the then outstanding
Registrable Notes and (B) in circumstances that would adversely affect the
Participating Broker-Dealers, the Participating Broker-Dealers holding not less
than a majority in aggregate principal amount of the Exchange Notes held by all
Participating Broker-Dealers; provided, however, that Section 7 and this Section
10(c) may not be amended, modified or supplemented without the prior written
consent of each Holder and each Participating Broker-Dealer (including any
person who was a Holder or Participating Broker-Dealer of Registrable Notes or
Exchange Notes, as the case may be, disposed of pursuant to any Registration
Statement) affected by any such amendment, modification or supplement.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders of Registrable Notes whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable Notes may be
given by Holders of at least a majority in aggregate principal amount of the
Registrable Notes being sold pursuant to such Registration Statement.

                  (d)      Notices. All notices and other communications
(including, without limitation, any notices or other communications to the
Trustee) provided for or permitted here-



                                      -29-

hereunder shall be made in writing by hand-delivery, registered first-class
mail, next-day air courier or facsimile:

                  (i)      if to a Holder of the Registrable Notes or any
         Participating Broker-Dealer, at the most current address of such Holder
         or Participating Broker-Dealer, as the case may be, set forth on the
         records of the registrar under the Indenture, with a copy in like
         manner to the Initial Purchasers as follows:

                          Deutsche Bank Securities Inc.
                          31 West 52nd Street
                          New York, New York  10019
                          Facsimile No.: (646) 324-7467
                          Attention: Corporate Finance Department

                          with a copy to:

                          Cahill Gordon & Reindel
                          80 Pine Street
                          New York, New York  10005
                          Facsimile No.: (212) 269-5420
                          Attention: John A. Tripodoro, Esq.

                  (ii)     if to the Initial Purchasers, at the address
         specified in Section 10(d)(i);

                  (iii)    if to the Issuers, at the address as follows:

                          Dole Food Company, Inc.
                          One Dole Drive
                          Westlake Village, CA 91362
                          Facsimile No.:
                          Attention: C. Michael Carter, Esq.

                          with a copy to:

                          Paul, Hastings, Janofsky & Walker LLP
                          695 Town Center Drive
                          Costa Mesa, CA 92626
                          Facsimile No.:
                          Attention: Peter Tennyson, Esq.

                  All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five Business
Days after being deposited in



                                      -30-

the mail, postage prepaid, if mailed; one Business Day after being timely
delivered to a next-day air courier; and upon written confirmation, if sent by
facsimile.

                  Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address and in the manner specified in such Indenture.

                  (e)      Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties hereto, the Holders and the Participating Broker-Dealers; provided,
however, that nothing herein shall be deemed to permit any assignment, transfer
or other disposition of Registrable Notes in violation of the terms of the
Purchase Agreement or the Indenture.

                  (f)      Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.

                  (g)      Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.

                  (h)      GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD REQUIRE THE APPLICATION OF
ANY OTHER LAW.

                  (i)      Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.

                  (j)      Notes Held by the Issuers or Their Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the Issuers
or their affiliates (as such term is defined in Rule 405 under



                                      -31-

the Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.

                  (k)      Third-Party Beneficiaries. Holders of Registrable
Notes and Participating Broker-Dealers are intended third-party beneficiaries of
this Agreement, and this Agreement may be enforced by such Persons.

                  (l)      Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a final and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein and any and all prior
oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversations and memoranda between the Holders
on the one hand and the Issuers on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.



IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.

                                              DOLE FOOD COMPANY, INC.

                                              By: /s/ Lawrence A. Kern
                                                  ------------------------------
                                                  Name:  Lawrence A. Kern
                                                  Title: President and COO

                                              THE GUARANTORS NAMED IN SCHEDULE 1
                                              ATTACHED HERETO

                                              By: /s/ C. Michael Carter
                                                  ------------------------------
                                                  Name:  C. Michael Carter
                                                  Title: Vice President

The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.

DEUTSCHE BANK SECURITIES INC.

By: /s/ Mark Fedorcik
    ----------------------------------------------
    Name:  Mark Fedorcik
    Title: Director

By: /s/ William Frauen
    ----------------------------------------------
    Name:  William Frauen
    Title: Managing Director

BANC OF AMERICA SECURITIES LLC

By: /s/ James G. Rose, Jr.
    ----------------------------------------------
    Name:  James G. Rose, Jr.
    Title:  Managing Director



SCOTIA CAPITAL (USA) INC.

By: /s/ Greg Woynarski
    ----------------------------------------------
    Name:  Greg Woynarski
    Title: Managing Director

FLEET SECURITIES, INC.

By: /s/ Christopher K. Wall
    ----------------------------------------------
    Name:  Christopher K. Wall
    Title: Vice President

SG COWEN SECURITIES CORPORATION

By: /s/ Neil R. Parehi
    ----------------------------------------------
    Name:  Neil R. Parehi
    Title: Managing Director

BMO NESBITT BURNS CORP.

By: /s/ James J. Goll
    ----------------------------------------------
    Name:  James J. Goll
    Title: Managing Director

                                      -2-