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Murdock David H, et al. – ‘SC 13D/A’ on 8/12/13 re: Dole Food Co Inc – EX-99.2

On:  Monday, 8/12/13, at 4:40pm ET   ·   Accession #:  1193125-13-331041   ·   File #:  5-33795

Previous ‘SC 13D’:  ‘SC 13D/A’ on 6/11/13   ·   Next & Latest:  ‘SC 13D/A’ on 11/5/13

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 8/12/13  Murdock David H                   SC 13D/A               5:707K Dole Food Co Inc                  RR Donnelley/FA
          Castle & Cooke Holdings, Inc.
          Castle & Cooke Investments, Inc.

Document/Exhibit                   Description                      Pages   Size 

 1: SC 13D/A    Amendment No. 19 to Schedule 13D                    HTML     62K 
 2: EX-99.1     Miscellaneous Exhibit                               HTML    255K 
 3: EX-99.2     Miscellaneous Exhibit                               HTML    250K 
 4: EX-99.3     Miscellaneous Exhibit                               HTML     23K 
 5: EX-99.4     Miscellaneous Exhibit                               HTML     11K 

Exhibit 99.2

THE BANK OF NOVA SCOTIA

650 West Georgia Street

Suite 1800

Vancouver, BC

Canada V6B 4N7

August 11, 2013

DFC Holdings, LLC

c/o Castle & Cooke, Inc.

10900 Wilshire Boulevard

Los Angeles, California 90024

Attention: David H. Murdock

Project Fresh

$675,000,000 Term Facility

$150,000,000 ABL Facility

$325,000,000 Senior Bridge Facility

Commitment Letter

Ladies and Gentlemen:

DFC Holdings, LLC, a Delaware limited liability company (“you” or “Holdings”) has advised each of Deutsche Bank AG New York Branch (“DBNY”), Deutsche Bank AG Cayman Islands Branch (“DBCI”), Deutsche Bank Securities Inc. (“DBSI”), Bank of America, N.A. (“Bank of America”), Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill Lynch”) and The Bank of Nova Scotia (“Scotia” and, together with DBNY, DBCI, DBSI, Bank of America and Merrill Lynch, collectively, the “Agents”, “we” or “us”) that you intend to consummate the Transaction (such term and each other capitalized term used but not defined herein having the meaning assigned to such term in the Transaction Description attached hereto as Exhibit A or in the Term Sheets referred to below).

1. Commitments.

In connection with the foregoing, (i) each of DBNY, Bank of America and Scotia (collectively, the “Initial Term Facility Lenders”) is pleased to advise you of its several and not joint commitment to provide 40%, 30% and 30%, respectively, of the entire principal amount of the Term Facility, upon the terms and subject to the conditions set forth or referred to in this commitment letter (together with the exhibits attached hereto, this “Commitment Letter”) and in the Summary of Principal Terms and Conditions attached hereto as Exhibit B (the “Term Facility Term Sheet”), (ii) each of DBNY, Bank of America and Scotia (collectively, the “Initial ABL Facility Lenders”) is pleased to advise you of its several and not joint commitment to provide 40%, 30% and 30%, respectively, of the entire principal amount of the ABL Facility, upon the terms and subject to the conditions set forth or referred to in this Commitment Letter and in the Summary of Principal Terms and Conditions attached hereto as Exhibit C

(the “ABL Facility Term Sheet”) and (iii) each of DBCI, Bank of America and Scotia (collectively, the “Initial Bridge Facility Lenders” and collectively with the Initial Term Facility Lenders and the Initial ABL Facility Lenders, the “Initial Lenders”) is pleased to advise you of its several and not joint commitment to provide 40%, 30% and 30%, respectively, of the entire principal amount of the Senior Bridge Facility, upon the terms and subject to the conditions set forth or referred to in this Commitment Letter and in the Summary of Principal Terms and Conditions attached hereto as Exhibit D (the “Senior Bridge Facility Term Sheet” and, together with the Term Facility Term Sheet, the ABL Facility Term Sheet and Exhibit E attached hereto, the “Term Sheets”).

2. Titles and Roles.

You hereby appoint (a) each of DBSI, Merrill Lynch and Scotia to act, and each of DBSI, Merrill Lynch and Scotia hereby agrees to act, as joint book running managers and joint lead arrangers for the Facilities (in such capacity, the “Lead Arrangers”) (it being understood that DBSI shall have “top left placement” in any listing of the Lead Arrangers and shall have the rights and responsibilities customarily associated with such name placement), (b) DBNY to act, and DBNY hereby agrees to act, as sole administrative agent and collateral agent for the Term Facility, (c) DBNY to act, and DBNY hereby agrees to act, as sole administrative agent and collateral agent for the ABL Facility, (d) DBCI to act, and DBCI hereby agrees to act, as sole administrative agent for the Senior Bridge Facility, in each case upon the terms and subject to the conditions set forth or referred to in this Commitment Letter and (e) Merrill Lynch and Scotia (or either of their designated affiliates) to act, and each of Merrill Lynch and Scotia agrees to act as a co-syndication agent for each of the Facilities. Each of DBSI, Merrill Lynch, Scotia, DBNY and DBCI will perform the duties and exercise the authority customarily performed and exercised by it in the foregoing roles.

You agree that, except as contemplated above, no other agents, co-agents or arrangers will be appointed, no other titles will be awarded and no compensation (other than that expressly contemplated by this Commitment Letter and the Fee Letter referred to below) will be paid in connection with the Facilities unless you and we shall so agree.

3. Syndication.

The Lead Arrangers reserve the right, prior to and/or after the execution of definitive documentation for the Facilities (the “Credit Documentation”), to syndicate all or a portion of our commitments with respect to the Facilities to a group of banks, financial institutions and other lenders identified by us in consultation with you and reasonably acceptable to you (your consent not to be unreasonably withheld, delayed or conditioned) (together with the Initial Lenders, the “Lenders”). Notwithstanding the foregoing, we will not syndicate to those banks, financial institutions and other institutional lenders separately identified in writing by you to us prior to the date hereof or to competitors (other than bona fide fixed income investors, banks (or similar financial institutions) or debt funds) of the Company and its subsidiaries identified in writing by you to us from time to time prior to the date hereof or after the Syndication Date (collectively, the “Disqualified Lenders”). All aspects of the syndication of the Facilities, including, without limitation, timing, potential syndicate members to be approached (subject to your consultation and consent rights set forth in this paragraph), titles, allocations and division of fees, shall be determined by (and coordinated through) the Lead Arrangers in consultation with you.

We intend to commence our syndication efforts with respect to the Facilities promptly upon your execution and delivery to us of this Commitment Letter, and, until the earlier to occur of (i) a Successful Syndication (as defined in the Fee Letter) and (ii) 90 days after the Closing Date (such earlier date, the “Syndication Date”), you agree to use your commercially reasonable efforts to assist us in completing a syndication that is reasonably satisfactory to us and you. Such assistance shall include (a)

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your using commercially reasonable efforts to ensure that any syndication efforts benefit from your and, the Acquired Business’ existing lending and investment banking relationships, (b) direct contact between senior management, representatives and advisors of you (and your using commercially reasonable efforts to cause direct contact between senior management, representatives and advisors of the Acquired Business) on the one hand and the proposed Lenders and rating agencies identified by the Lead Arrangers on the other hand, at times and places mutually agreed upon, (c) assistance by you (and your using commercially reasonable efforts to cause the assistance by the Acquired Business) in the prompt preparation of a customary confidential information memorandum (the “Confidential Information Memorandum”) for each of the Facilities and other customary marketing materials and information reasonably deemed necessary by the Lead Arrangers to complete a successful syndication (collectively, the “Information Materials”) for delivery to potential syndicate members and participants, including, without limitation, estimates, forecasts, projections and other forward-looking financial information regarding future performance of Holdings, the Company and their subsidiaries (the “Projections”), (d) the hosting, with the Lead Arrangers, of one or more meetings with prospective Lenders at times and locations to be mutually agreed upon and (e) your using commercially reasonable efforts to obtain, prior to the launch of the syndication of the Facilities and the sale of the Senior Notes, ratings (but no specific ratings) for each of the Facilities (other than ABL Facility) and the Senior Notes from each of Standard & Poor’s Financial Services LLC (“S&P”) and Moody’s Investors Service, Inc. (“Moody’s”) and a public corporate rating and a public corporate family rating (but no specific rating) of the Company from S&P and Moody’s, respectively prior to the launch of syndication of the Facilities and the start of the “roadshow” for the Senior Notes. For the avoidance of doubt, you will not be required to provide any information to the extent that the provision thereof would violate any attorney-client privilege, law or regulation, or any obligation of confidentiality binding on Holdings, the Company or any of their respective affiliates. Notwithstanding anything to the contrary contained in this Commitment Letter or the Fee Letter, (i) none of the foregoing or compliance with any other provisions of paragraph 3 of this Commitment Letter shall constitute a condition to the commitments hereunder or the funding of the Facilities on the Closing Date and (ii) neither the commencement nor the completion of the syndication of the Facilities shall constitute a condition to the commitments hereunder or the funding of the Facilities on the Closing Date.

To ensure an orderly and effective syndication of the Facilities and the commitments provided herein, you agree that prior to the Syndication Date, you will not (or, in the case of the Acquired Business and its subsidiaries, you will use commercially reasonable efforts to ensure that it will not) announce, issue, offer, place or arrange any debt securities or commercial bank or other credit facilities (including refinancings and renewals of debt but excluding the Senior Notes and the Facilities) of, or on behalf of, you, the Borrower, the Acquired Business or any of your or their subsidiaries if such announcement, issuance, offering, placement or arrangement would materially impair the primary syndication of the Facilities or the sale of the Senior Notes as reasonably determined by us (it being understood and agreed that any ordinary course working capital facilities and ordinary course capital lease, purchase money and equipment financings will not be deemed to materially impair the primary syndication of the Facilities).

You hereby acknowledge that (a) the Agents will make available Information (as defined below) and Projections, and the documentation relating to the Facilities referred to in the paragraph below, to the proposed syndicate of Lenders by transmitting such Information, Projections and documentation through Intralinks, SyndTrak Online, the internet, email or similar electronic transmission systems and (b) certain of the Lenders may be “public side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to Holdings, the Acquired Business and their subsidiaries or their respective securities). If requested by the Lead Arrangers, you will assist us in preparing a customary additional version of the Confidential Information Memorandum and other Information Materials consisting exclusively of information and documentation that is either (i) publicly

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available or (ii) not material with respect to Holdings, the Acquired Business or their respective subsidiaries or any of their respective securities for purposes of foreign, United States Federal and state securities laws (all such information and documentation being “Public Lender Information” and with any information and documentation that is not Public Lender Information being referred to herein as “Private Lender Information”).

It is understood that in connection with your assistance described above, customary authorization letters will be included in any such Confidential Information Memorandum that authorize the distribution thereof to prospective Lenders, represent that the additional version of the Confidential Information Memorandum does not include any material non-public information and exculpate us with respect to any liability related to the use or misuse of the contents of such Confidential Information Memorandum or any related offering and marketing materials by the recipients thereof and exculpate you, the Acquired Business, the existing equity holders of you and the Acquired Business and your and their respective affiliates with respect to any liability related to the misuse of the contents of such Confidential Information Memorandum or any related offering and marketing materials by the recipients thereof. Before distribution of any such Confidential Information Memorandum or any related offering and marketing materials, each document to be disseminated by an Agent to any Lender in connection with the Facilities will be identified by you as either (i) containing Private Lender Information or (ii) containing solely Public Lender Information.

You further agree that the following documents may be distributed as Public Lender Information, unless you advise the Lead Arrangers in writing (including by email) within a reasonable time prior to their intended distribution that such materials should only be distributed as Private Lender Information: (a) administrative materials prepared by the Lead Arrangers for prospective Lenders (such as a lender meeting invitation, bank allocation, if any, and funding and closing memoranda), (b) customary marketing term sheets and notification of changes in the Facilities’ terms and conditions, (c) drafts and final versions of the Credit Documentation, (d) financial statements of the Acquired Business and (e) other materials (excluding the Projections (as defined above)) that you have instructed the Lead Arrangers or given the Lead Arrangers written permission, to disseminate as Public Lender Information after the initial distribution of Information Materials.

4. Information.

You represent and warrant that (a)(i) no written information which has been or is hereafter furnished by you or on your behalf in connection with the transactions contemplated hereby (other than the Projections, other forward looking information and information of a general or industry specific nature) and (ii) no other information given at information meetings for potential syndicate members and supplied or approved by you or on your behalf (other than the Projections, other forward looking information and information of a general or industry specific nature) (such written information and other information being referred to herein collectively as the “Information”) taken as a whole contained (or, in the case of Information furnished after the date hereof, will contain), as of the time it was (or hereafter is) furnished, any material misstatement of fact or omitted (or will omit) as of such time to state any fact necessary to make the statements therein taken as a whole not materially misleading, in the light of the circumstances under which they were (or hereafter are) made (after giving effect to all supplemental updates thereto at such time) and (b) the Projections that have been or will be made available to the Lead Arrangers by you or any of your representatives have been or will be prepared in good faith based upon assumptions that you believe to be reasonable at the time made and at the time such Projections are made available to the Lead Arrangers, it being recognized by the Agents that such Projections are not to be viewed as facts and that actual results during the period or periods covered by any such Projections may differ significantly from the projected results, and that no assurance can be given that the projected results will be realized. You agree that if at any time prior to the Syndication

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Date (or, if later, the Closing Date) you become aware that any of the representations and warranties in the preceding sentence would be incorrect in any material respect if the Information and Projections were being furnished, and such representations and warranties were being made, at such time, then you will promptly notify us and promptly supplement the Information and the Projections from time to time until the Syndication Date (or, if earlier, the Closing Date) so that such representations and warranties will be correct in all material respects under those circumstances. The accuracy of the foregoing representations and warranties shall not be a condition to our obligations or the funding of the Facilities on the Closing Date. You understand that, in arranging and syndicating the Facilities, we will be entitled to use and rely on the Information and the Projections without responsibility for independent verification thereof. We do not assume responsibility for the accuracy or completeness of the Information or the Projections.

5. Conditions Precedent.

Each Agent’s commitment hereunder, and its agreement to perform the services described herein, are subject to (a) since December 29, 2012 and through the date of the Acquisition Agreement, except as otherwise expressly contemplated by the Acquisition Agreement, there not having been any action, event, occurrence, development or state of circumstances or facts that, individually or in the aggregate, would have a Material Adverse Effect (as defined below) and since the date of the Acquisition Agreement, there not occurring or having taken place a Material Adverse Effect (as defined below) and (b) the applicable conditions in this Section 5 and those set forth in the section entitled “Conditions Precedent” in Exhibit B attached hereto, the section entitled “Conditions Precedent” in Exhibit C attached hereto, the section entitled “Conditions Precedent” in Exhibit D attached hereto and in Exhibit E attached hereto. Upon satisfaction (or waiver by us) of such conditions, the initial funding of the Facilities shall occur, it being understood that there are no conditions (implied or otherwise) to the commitments hereunder, including compliance with the terms of this Commitment Letter, the Fee Letter or the Credit Documentation, other than those expressly set forth in this paragraph.

As used herein, the term “Material Adverse Effect” shall mean any adverse development, change, effect, event, occurrence, circumstance or state of facts (a) that has a material adverse effect on the financial condition, business, assets, properties, operations or results of operations of the Company and its Subsidiaries, taken as a whole, or (b) which would prevent or materially impair the ability of the Company to consummate the Merger, which has occurred or would reasonably be expected to occur as a result of such development, change, effect, event, occurrence, circumstance or state of facts, excluding in each case (i) any development, change, effect, event, occurrence, circumstance or state of facts resulting from general changes in economic and financial market conditions, (ii) changes in conditions (including as a result of changes in laws, including without limitation, common law, tariffs, export and import laws, rules and regulations or the interpretations thereof and as a result of weather conditions) generally applicable to the fresh produce industry that are not unique to the Company and its Subsidiaries, (iii) changes resulting from the announcement of the transactions described in the Acquisition Agreement or the identity of the Parent or the Purchaser or from the performance of the Acquisition Agreement and compliance with the covenants set forth therein, (iv) any actions required under the Acquisition Agreement to obtain any approval or authorization under applicable antitrust or competition laws for the consummation of the Merger, (v) any decline in the market price, or change in trading volume, of any capital stock of the Company or (vi) any failure to meet any internal or public projections, forecasts or estimates of revenue, earnings, cash flow, cash position or other financial measures (provided that the underlying cause of any decline, change or failure referred to in clause (v) or (vi) (if not otherwise falling within clauses (i) through (vi) above) may be taken into account in determining whether there is a “Material Adverse Effect”), except in the case of clauses (i) and (ii), to the extent that the Company and its Subsidiaries, taken as a whole, are disproportionately affected thereby as compared with other participants in the industries in which the Company and its Subsidiaries operate (in which case the incremental disproportionate impact or impacts may be taken into account in determining whether there is

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a “Material Adverse Effect”)). Notwithstanding the foregoing, a “Material Adverse Effect” shall be deemed to have occurred if, following the date of this Agreement, the Company and its Subsidiaries incur judgments or costs in connection with Proceedings (which judgments or costs are not covered by insurance or other third-party indemnity and which are likely, in the opinion of the Company’s general counsel, to be sustained on appeal or otherwise enforced against the Company or a Subsidiary of the Company) in an amount which results in an event of default under and an acceleration of the Existing Credit Agreement (as defined in Exhibit A). Capitalized terms used in the definition set forth above and not otherwise defined in this Commitment Letter shall have the meanings given such terms by the Acquisition Agreement as in effect on the date hereof.

Notwithstanding anything set forth in this Commitment Letter, the Term Sheets, the Fee Letter or the Credit Documentation, or any other letter agreement or other undertaking concerning the financing of the Acquisition to the contrary, (i) the only representations and warranties the accuracy of which shall be a condition to availability of the Facilities on the Closing Date shall be (x) such of the representations made by (or relating to) the Acquired Business in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that you have (or your applicable affiliate has) the right (determined without regard to any notice requirement) to terminate your (or your affiliate’s) obligations (or to refuse to consummate the Acquisition) under the Acquisition Agreement as a result of a breach of such representations (the “Acquisition Agreement Representations”) and (y) the Specified Representations (as defined below) and (ii) the terms of the Credit Documentation shall be in a form such that they do not impair the availability of the Facilities on the Closing Date if the conditions set forth in this Section 5 and in the section entitled “Conditions Precedent” in Exhibit B attached hereto, the section entitled “Conditions Precedent” in Exhibit C attached hereto, the section entitled “Conditions Precedent” in Exhibit D attached hereto and in Exhibit E attached hereto are satisfied (or waived by us) (it being understood that to the extent any Collateral referred to in the Term Facility Term Sheet or ABL Facility Term Sheet may not be perfected by (A) the filing of a UCC financing statement or (B) taking delivery and possession of stock certificates, then the perfection of the security interest in such Collateral shall not constitute a condition precedent to the availability of the Senior Secured Credit Facilities on the Closing Date but, instead, may be accomplished within 90 days after the Closing Date or such longer period as may be acceptable to DBNY in its discretion). For purposes hereof, “Specified Representations” means the representations and warranties of the Borrower, Solvest and the Guarantors (after giving effect to the Transaction) set forth in the Term Sheets relating to corporate or other organizational existence, organizational power and authority relating to the entering into and performance of the Credit Documentation, the due authorization, execution, delivery, validity and enforceability of the Credit Documentation against the Borrower, Solvest and the Guarantors, no conflicts of Credit Documentation with organizational documents of the Borrower, Solvest and the Guarantors or material laws, Federal Reserve margin regulations, the Investment Company Act of 1940, as amended, solvency of Holdings and its subsidiaries on a consolidated basis as of the Closing Date (after giving pro forma effect to the Transaction), Patriot Act/“know your customer” laws, OFAC/anti-terrorism laws, FCPA and, subject to the last parenthetical appearing in the preceding sentence and permitted liens as set forth in the Credit Documentation, the creation, validity, perfection and priority of the security interests granted in the proposed Collateral. The provisions of this paragraph are referred to as the “Limited Conditionality Provisions”.

6. Fees.

As consideration for each Agent’s commitment hereunder, and its agreement to perform the services described herein, you agree to pay (or cause to be paid) to each Agent the fees to which such Agent is entitled set forth in this Commitment Letter and in the fee letter dated the date hereof and delivered herewith with respect to the Facilities (the “Fee Letter”).

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7. Expenses; Indemnification.

You hereby agree (i) to reimburse the Agents, within 30 days (or in the case of amounts to be reimbursed on the Closing Date in accordance with paragraph 9 of Exhibit E, three business days) of presentation of a summary statement, for all reasonable and out-of-pocket expenses actually incurred by any of the Agents (including reasonable fees and expenses of one primary counsel for the Agents taken as a whole (and, solely in the case of a conflict of interest, one additional counsel as necessary to the affected Agents taken as whole), and, one local counsel in each relevant jurisdiction), in each case, incurred in connection with the preparation, negotiation, execution, delivery and enforcement of this Commitment Letter, the Fee Letter and the Credit Documentation (including in connection with our due diligence and syndication efforts) and expenses in connection with the field examinations and inventory appraisals (the “Expenses”); provided that, except as set forth in the Fee Letter and except for Expenses in connection with field examinations and inventory appraisals in an aggregate amount not to exceed $250,000, you shall not be required to reimburse any of the Expenses in the event the Closing Date does not occur and (ii) to indemnify and hold harmless each Agent and each other agent or co-agent (if any) designated by the Agents with respect to the Facilities (each, a “Co-Agent”), each Lender (including, without limitation, each Initial Lender) and their respective affiliates and each director, officer, employee, representative and agent thereof (each, an “Indemnified Person”), from and against any and all actions, suits, proceedings (including any investigations or inquiries, claims, losses, damages, liabilities or expenses of any kind or nature whatsoever which may be incurred by or asserted against or involve any Agent, any Co-Agent, any Lender or any other such Indemnified Person as a result of or arising out of or in any way related to or resulting from the Transaction, this Commitment Letter or the Fee Letter and, upon demand, to pay and reimburse each Agent, each Co-Agent, each Lender and each other Indemnified Person within 30 days after receipt of a written request together with reasonably detailed backup documentation for any reasonable out-of-pocket legal (limited to one counsel for all Indemnified Persons taken as a whole and, if necessary, a single local counsel for all Indemnified Persons taken as a whole in each relevant jurisdiction and, solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction to the affected Indemnified Persons similarly situated taken as a whole) or other reasonable out-of-pocket expenses actually paid or incurred in connection with investigating, defending or preparing to defend any such action, suit, proceeding (including any inquiry or investigation) or claim (whether or not any Agent, any Co-Agent, any Lender or any other such Indemnified Person is a party to any action or proceeding out of which any such expenses arise or such matter is initiated by a third party, by the Company or by you or any of your or their respective affiliates); provided, however, that you shall not have to indemnify any Indemnified Person against any loss, claim, damage, expense or liability (i) to the extent same resulted from the gross negligence or willful misconduct of such Indemnified Person or such Indemnified Person’s principals, directors, officers, employees, representatives, agents or control persons, in each case, which are rendering services on behalf of such Indemnified Person in connection with the Transaction or have gained access to information provided pursuant to this Commitment Letter (as to any Indemnified Person, its “Related Indemnified Persons”), (ii) to the extent resulting from a material breach of the obligations of such Indemnified Person or any of such Indemnified Person’s Related Indemnified Persons (in each case of the preceding clauses (i) or (ii), as determined by a court of competent jurisdiction in a final and non-appealable judgment), or (iii) to the extent resulting from any dispute that does not involve an act or omission by you or any of your affiliates (other than any action involving a claim against an Indemnified Person in its capacity as an arranger or agent or any similar capacity for the Facilities). Each Indemnified Person shall promptly notify you upon receipt of written notice of any threat to institute a claim; provided that any failure by any Indemnified Person to give such notice shall not relieve you from your obligation to indemnify such Indemnified Person. Each Indemnified Person agrees to refund and return any and all amounts paid by you to such Indemnified Person to the extent such Indemnified Person is determined by a court of competent jurisdiction in a final and non-appealable judgment to not be entitled to such reimbursement. Neither any Agent nor any other Indemnified Person shall be responsible or liable to you or any other person or entity for any damages

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arising from the use by others of information or other materials obtained through electronic, telecommunications, internet-based or other information transmission systems (including IntraLinks, SyndTrak Online or email), except to the extent such damages have resulted from the willful misconduct or gross negligence of such Agent or any of its Related Indemnified Persons (as determined by a court of competent jurisdiction in a final and non-appealable judgment). Notwithstanding anything to the contrary set forth herein, neither any Indemnified Person nor you (except, in the case of you, as a result of your indemnification obligations as set forth above) shall be liable for any indirect, special, exemplary, incidental, punitive or consequential damages (including, without limitation, any loss of profits, business or anticipated savings) which may be alleged as a result of this Commitment Letter, the Fee Letter or the financing contemplated hereby or thereby. You shall not be liable for any settlement of any Proceeding effected without your prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), but if settled with your written consent, you agree to indemnify and hold harmless each Indemnified Person from and against any losses, claims, damages, liabilities and expenses by reason of such settlement in accordance with, and subject to, this Section 7.

8. Sharing Information; Absence of Fiduciary Relationship; Affiliate Activities.

Each Agent reserves the right to employ the services of its affiliates in providing services contemplated by this Commitment Letter and to allocate, in whole or in part, to its affiliates certain fees payable to such Agent in such manner as such Agent and its affiliates may agree in their sole discretion. You acknowledge that (i) subject to the confidentiality provisions set forth herein, each Agent may share with any of its affiliates, and such affiliates may share with such Agent, any information related to the Transaction, Holdings, the Borrower, the Acquired Business, (and their respective subsidiaries and affiliates), or any of the matters contemplated hereby and (ii) each Agent and its affiliates may be providing debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which you may have conflicting interests regarding the transactions described herein or otherwise. We will not, however, furnish confidential information obtained from you by virtue of the transactions contemplated by this Commitment Letter or our other relationships with you to other companies without your prior written consent. You also acknowledge that we do not have any obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained by us from other companies.

You further acknowledge and agree that (a) no fiduciary, advisory or agency relationship between you and us is intended to be or has been created in respect of any of the transactions contemplated by this Commitment Letter, irrespective of whether we or our affiliates have advised or are advising you on other matters, (b) we, on the one hand, and you, on the other hand, have an arms’-length business relationship that does not directly or indirectly give rise to, nor do you rely on, any fiduciary duty on our part, (c) you are capable of evaluating and understanding, and you understand and accept, the terms, risks and conditions of the transactions contemplated by this Commitment Letter, (d) you have been advised that we and our affiliates are engaged in a broad range of transactions that may involve interests that differ from your interests and that we and our affiliates have no obligation to disclose such interests and transactions to you by virtue of any fiduciary, advisory or agency relationship and (e) you waive, to the fullest extent permitted by law, any claims you may have against us or our affiliates for breach of fiduciary duty or alleged breach of fiduciary duty and agree that we and our affiliates shall have no liability (whether direct or indirect) to you in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of you, including your stockholders, employees or creditors.

You further acknowledge that each Agent (or its affiliate) is a full service securities firm engaged in securities trading and brokerage activities as well as providing investment banking and other financial services. In the ordinary course of business, any Agent or its affiliates may provide investment

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banking and other financial services to, and/or acquire, hold or sell, for its own accounts and the accounts of customers, equity, debt and other securities and financial instruments (including bank loans and other obligations) of, you, the Borrower, the Acquired Business and your and their respective subsidiaries and other companies with which you, the Acquired Business or the Borrower or your respective subsidiaries may have commercial or other relationships. With respect to any securities and/or financial instruments so held by any Agent, any of its affiliates or any of their respective customers, all rights in respect of such securities and financial instruments, including any voting rights, will be exercised by the holder of the rights, in its sole discretion.

9. Confidentiality.

This Commitment Letter is delivered to you on the understanding that neither this Commitment Letter nor the Fee Letter nor any of their terms or substance shall be disclosed, directly or indirectly, by you to any other person or entity except (a) to your affiliates, officers, directors, employees, attorneys, accountants and advisors who are directly involved in the consideration of this matter and on a confidential and need-to-know basis, (b) if we consent in writing to any such proposed disclosure, or (c) as required by applicable law or compulsory legal process or in connection with any pending legal proceeding (in which case you agree, to the extent permitted by applicable law, to inform us promptly thereof) or regulatory review; provided that (i) you may disclose this Commitment Letter and the contents hereof (but you may not disclose the Fee Letter or the contents thereof) in any prospectus or other offering memorandum relating to the Senior Notes or in any filing with the SEC in connection with the Transaction, (ii) you may disclose the Term Sheets and the other exhibits and annexes to the Commitment Letter, and the contents thereof, to any rating agencies in connection with obtaining ratings for the Borrower and the Facilities, (iii) you may disclose the aggregate fees contained in the Fee Letter as part of Projections, pro forma information or a generic disclosure of aggregate sources and uses related to fee amounts related to the Transactions to the extent customary or required in offering and marketing materials for the Facilities and/or the Senior Notes or in any public release or filing relating to the Transaction, (iv) you may disclose the Term Sheets (and the contents thereof) to potential Lenders and their affiliates involved in the related commitments and to rating agencies in connection with obtaining ratings for the Borrower and the Facilities, (v) you may disclose this Commitment Letter (but not the Fee Letter) in any proxy relating to the Transaction, (vi) you may disclose this Commitment Letter and the contents thereof to the Company and its officers, directors, employees, agents, attorneys, accountants, advisors, and controlling persons, on a confidential and need to know basis, and (vii) to the extent the amount of fees and other economic terms set forth herein have been redacted in a manner to be reasonably agreed upon, you may disclose the Fee Letter and the contents thereof to the Company and its officers, directors, employees, agents, attorneys, accountants, advisors and controlling persons on a confidential and need to know basis. The confidentiality provisions set forth in this paragraph shall survive the termination of this Commitment Letter.

The Agents and their respective affiliates will use all confidential information provided to them or such affiliates by or on behalf of you hereunder solely for the purpose of providing the services which are the subject of this Commitment Letter and shall treat confidentially all such information; provided that nothing herein shall prevent any Agent from disclosing any such information (a) pursuant to the order of any court or administrative agency or in any pending legal or administrative proceeding, or otherwise as required by applicable law or compulsory legal process (in which case such Agent, to the extent permitted by law, agrees to inform you promptly thereof), (b) upon the request or demand of any regulatory authority or self-regulatory body having jurisdiction or oversight over such Agent or any of its affiliates, their business or operations, (c) to the extent that such information becomes publicly available other than by reason of improper disclosure by such Agent or any of its affiliates, (d) to the extent that such information is or was received by such Agent from a third party that is not to its knowledge subject to confidentiality obligations to you or the Acquired Business, (e) to the extent that such information is

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independently developed by such Agent, (f) to such Agent’s respective affiliates and its and their respective employees, legal counsel, independent auditors and other experts or agents who need to know such information in connection with the Transaction and are informed of the confidential nature of such information, (g) to potential Lenders, participants or assignees or any potential counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower or any of its affiliates or any of their respective obligations (which may be oral or pursuant to customary syndication practice) in each case who are instructed that they shall be bound by the terms of this paragraph (or language substantially similar to this paragraph), (h) for purposes of establishing a “due diligence” or similar defense, (i) to the extent necessary in connection with the enforcement of their respective rights hereunder or under the Fee Letter or (j) to the extent permitted by Section 11 hereof in respect of the customary advertisements and promotional materials contemplated thereby; provided that (i) the disclosure of any such information to any Lenders, hedge providers or prospective Lenders, hedge providers or participants or prospective participants referred to above shall be made subject to the acknowledgment and acceptance by such Lender, hedge provider or prospective Lender or participant or prospective participant that such information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as is otherwise reasonably acceptable to you and us, including, without limitation, as agreed in any Information Materials or other marketing materials) in accordance with the standard syndication processes of the Lead Arrangers or customary market standards for dissemination of such type of information, which shall in any event require “click through” or other affirmative actions on the part of recipient to access such information and (ii) no such disclosure shall be made by any of us to any person that is at such time a Disqualified Lender. The Agents’ obligations under this paragraph shall automatically terminate and be superseded by the confidentiality provisions in the Credit Documentation upon the execution and delivery of the Credit Documentation and initial funding thereunder (or, in the event that any Senior Notes are issued on the Closing Date, upon the initial funding of the Senior Secured Credit Facilities only) or shall expire on the second anniversary of the date hereof, whichever occurs earlier.

10. Assignments; Etc.

This Commitment Letter and the Fee Letter (and your rights and obligations hereunder and thereunder) shall not (other than any assignment as a matter of law in connection with your merger with the Company) be assignable by you without the prior written consent of each Agent (and any attempted assignment without such consent shall be null and void), are intended to be solely for the benefit of the parties hereto and thereto (and Indemnified Persons), are not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto and thereto (and Indemnified Persons) and may not be relied upon by any person or entity other than you. Each Agent may assign its commitment hereunder to one or more prospective Lenders; provided that (a) no Agent shall be relieved or novated from its obligations hereunder in connection with any syndication, assignment or participation of the Facilities (including its commitments in respect thereof) until after the initial funding of the Facilities and (if applicable) the issuance of the Senior Notes on the Closing Date, (b) no assignment or novation shall become effective with respect to all or any portion of any Agent’s commitments in respect of the Facilities until the initial funding of the Facilities and (if applicable) the issuance of the Senior Notes on the Closing Date and (c) unless you agree in writing, each Agent shall retain exclusive control over all rights and obligations with respect to its commitments in respect of the applicable Facilities, including all rights with respect to consents, modifications, supplements and amendments, until the initial funding of the Facilities and (if applicable) the issuance of the Senior Notes on the Closing Date has occurred. Any and all obligations of, and services to be provided by an Agent hereunder (including, without limitation, the commitment of such Agent) may be performed and any and all rights of the Agents hereunder may be exercised by or through any of their respective affiliates or branches.

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11. Amendments; Governing Law; Etc.

This Commitment Letter and the Fee Letter may not be amended or modified, or any provision hereof or thereof waived, except by an instrument in writing signed by you and each Agent. Each of this Commitment Letter and the Fee Letter may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed signature page of this Commitment Letter or the Fee Letter by facsimile (or other electronic, i.e. a “pdf” or “tif”) transmission shall be effective as delivery of a manually executed counterpart hereof or thereof, as the case may be. Section headings used herein and in the Fee Letter are for convenience of reference only, are not part of this Commitment Letter or the Fee Letter, as the case may be, and are not to affect the construction of, or to be taken into consideration in interpreting, this Commitment Letter or the Fee Letter, as the case may be. You acknowledge that information and documents relating to the Facilities may be transmitted through Intralinks, the internet, email or similar electronic transmission systems and that no Agent shall be liable for any damages arising from the use by others of information or documents transmitted in such manner. Each Agent may, (i) with your prior written consent (not to be unreasonably withheld, conditioned or delayed), place customary advertisements in financial and other newspapers and periodicals or on a home page or similar place for dissemination of customary information on the Internet or worldwide web as they may choose, and (ii) circulate similar promotional materials, after the closing of the Transaction in the form of a “tombstone” or otherwise describing the names of the Borrower and its affiliates (or any of them), and the amount, type and closing date of the transactions contemplated hereby, in each case, all at the expense of the Agents. This Commitment Letter and the Fee Letter set forth the entire agreement between the parties hereto as to the matters set forth herein and therein and supersede all prior understandings, whether written or oral, between us with respect to the matters herein and therein. Matters that are not covered or made clear in this Commitment Letter or in Fee Letter are subject to mutual agreement of the parties hereto. THIS COMMITMENT LETTER AND THE FEE LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF, TO THE EXTENT THAT THE SAME ARE NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION); provided, however, that it is understood and agreed that (a) the interpretation of the definition of “Material Adverse Effect” (and whether or not such Material Adverse Effect has occurred), (b) the determination of the accuracy of any representations of the Company and whether as a result of any inaccuracy thereof you (or your affiliates) has the right (taking into account any applicable cure provisions) to terminate your (or your affiliates’) obligations under the Acquisition Agreement or decline to consummate the Acquisition and (c) the determination of whether the Acquisition has been consummated in accordance with the terms of the Acquisition Agreement, in each case shall be governed by, and construed in accordance with, the laws of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.

12. Jurisdiction.

Each of the parties hereto hereby irrevocably and unconditionally (a) submits, for itself and its property, to the exclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in the County of New York, Borough of Manhattan, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter or the transactions contemplated hereby or thereby, or for recognition or enforcement of any judgment, and agrees that all claims in respect of any such action or proceeding shall be heard and determined only in such courts located within New York County; provided, however, that each Agent shall be entitled to assert jurisdiction over you and your property in any court in which jurisdiction may be laid over you or your property, (b) waives, to the fullest extent it may legally and effectively do so, any

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objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter or the transactions contemplated hereby or thereby in any New York State or Federal court sitting in New York County, as the case may be, (c) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court and (d) agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each of the parties hereto agrees that service of any process, summons, notice or document by registered mail or overnight courier addressed to you at the address above shall be effective service of process against you for any suit, action or proceeding brought in any such court.

13. Waiver of Jury Trial.

EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, SUIT, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THIS COMMITMENT LETTER, THE FEE LETTER OR THE PERFORMANCE OF SERVICES HEREUNDER OR THEREUNDER.

14. Surviving Provisions.

The indemnification, confidentiality, fees, assignment, syndication, absence of agency or fiduciary duty, survival, jurisdiction, service of process, venue, governing law and waiver of jury trial provisions contained herein and the provisions of the Fee Letter shall remain in full force and effect regardless of whether definitive Credit Documentation shall be executed and delivered and notwithstanding the termination of this Commitment Letter or the commitments of the Agents hereunder and our agreements to perform the services described herein; provided that your obligations under this Commitment Letter (but not the Fee Letter), other than those provisions relating to confidentiality and the syndication of the Facilities, shall automatically terminate and be superseded by the definitive Credit Documentation relating to the Facilities upon the initial funding thereunder and you shall be released from all liability in connection therewith at such time. You may terminate this Commitment Letter and/or the Initial Lenders’ commitments with respect to the Facilities (or a portion thereof) hereunder at any time subject to the provisions of the preceding sentence.

15. PATRIOT Act Notification.

Each Agent hereby notifies you that pursuant to the requirements of the USA PATRIOT Improvement and Reauthorization Act, Title III of Pub. L. 109-177 (signed into law March 9, 2009) (as amended from time to time, the “PATRIOT Act”), such Agent is required to obtain, verify and record information that identifies the Borrower and any other borrowers and guarantors under the Facilities, which information includes the name, address, tax identification number and other information regarding the Borrower and such other borrowers and guarantors that will allow such Agent to identify the Borrower and such other borrowers and guarantors in accordance with the PATRIOT Act. This notice is given in accordance with the requirements of the PATRIOT Act and is effective as to each Agent and each Lender.

16. Termination and Acceptance.

Each Agent’s commitments with respect to the Facilities as set forth above, and each Agent’s agreements to perform the services described herein, will automatically terminate (without further action or notice and without further obligation to you) on the first to occur of (i) 5:00 p.m., New

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York City time, on February 11, 2014, unless on or prior to such time the Transaction has been consummated, (ii) in the case of the Initial Bridge Facility Lenders’ commitments with respect to the Senior Bridge Facility only, the date of the issuance of the Senior Notes (in escrow or otherwise) in lieu of a borrowing thereunder, (iii) any time after the execution of the Acquisition Agreement and prior to the consummation of the Acquisition, the date of the termination of the Acquisition Agreement, or (iv) with respect to any Facility, the consummation of the Acquisition without the use of such Facility.

If the foregoing correctly sets forth our agreement with you, please indicate your acceptance of the terms of this Commitment Letter and of the Fee Letter by returning to us executed counterparts hereof and of the Fee Letter not later than 5:00 p.m., New York City time, on August 12, 2013. The commitments of each Agent hereunder, and the Agents’ agreements to perform the services described herein, will expire automatically (and without further action or notice and without further obligation to you) at such time in the event that we have not received such executed counterparts in accordance with the immediately preceding sentence.

[Remainder of this page intentionally left blank]

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We are pleased to have been given the opportunity to assist you in connection with this important financing.

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EXHIBIT A

Project Fresh

$675,000,000 Term Facility

$150,000,000 ABL Facility

$325,000,000 Senior Bridge Facility

Transaction Description

Capitalized terms used but not defined in this Exhibit A shall have the meanings set forth in the other Exhibits to the commitment letter to which this Exhibit A is attached.

Holdings intends to (i) acquire (the “Acquisition”) all of the outstanding common stock of Dole Food Company, Inc. (the “Company” and together with its subsidiaries collectively, the “Acquired Business”) other than the Rollover Equity (as defined below) for a cash purchase price not to exceed $13.50 per share from the existing shareholders of the Company pursuant to a merger of DFC Merger Corp., a newly formed wholly-owned domestic subsidiary of Holdings (“Merger Sub”) with and into the Company in accordance with an Agreement and Plan of Merger, dated as of August 11, 2013 (the “Acquisition Agreement”), and (ii) concurrently with the consummation of the Acquisition, refinance the Acquired Business’ outstanding senior secured credit agreement (the “Existing Credit Agreement”) (the “Refinancing”). After the consummation of the Acquisition, all of the outstanding equity interests of Holdings will be owned, directly or indirectly, by David H. Murdock and his controlled affiliates (collectively, the “Equity Investors”), and all equity interests of the Company will be owned by Holdings.

The sources of funds needed to effect the Acquisition and the Refinancing, to pay all fees and expenses incurred in connection with the Transaction (the “Transaction Costs”) and to provide for the working capital needs and general corporate requirements of the Borrower and its subsidiaries after giving effect to the Acquisition shall be provided solely through:

(i) a cash common equity contribution to Holdings from the Equity Investors in an aggregate amount of at least $200 million which shall be contributed to Merger Sub as common equity (the “Cash Common Equity Financing”);

(ii) the contribution to Holdings and further contribution by Holdings to Merger Sub of all outstanding common equity of the Company currently held by David H. Murdock and his controlled investment affiliates (the “Rollover Equity” and together with the Cash Common Equity Financing, the “Common Equity Financing”);

(iii) senior secured financing consisting of (i) a $675 million term loan facility (the “Term Facility”) and (ii) a $150 million asset based revolving credit facility (the “ABL Facility” and, together with the Term Facility, the “Senior Secured Credit Facilities”); provided that, except as expressly permitted in Clause A.4. in the subsection entitled “Use of Proceeds” in Exhibit C, no portion of the ABL Facility may be utilized to make payments owing to finance the Acquisition or the Refinancing or to pay Transaction Costs;

(iv) either (x) the issuance and sale by the Borrower of $325 million in aggregate principal amount of unsecured senior notes (the “Senior Notes”) in a non-public “144A for life” offering or (y) if and to the extent that the Borrower does not issue the Senior Notes in such aggregate amount on or prior to the Closing Date, the incurrence of loans in an aggregate principal amount equal to the remainder of $325 million less the aggregate principal amount of Senior Notes issued pursuant to the immediately preceding clause (x) (the “Senior Bridge

A-1

Loans”) from one or more lenders under a new unsecured senior bridge facility (the “Senior Bridge Facility” and, together with the Senior Secured Credit Facilities, being collectively referred to as the “Facilities” and each a “Facility”); and

(v) cash on hand of the Acquired Business.

The date on which the Acquisition is consummated and the initial borrowings are made under any of the Facilities (or in lieu of borrowing under the Senior Bridge Facility, the issuance of the Senior Notes) is referred to herein as the “Closing Date”.

The transactions described above are collectively referred to herein as the “Transaction”. Notwithstanding the foregoing, at the option of the Lead Arrangers, the Term Facility may be provided through an incremental term loan under, and amendment to, the Existing Credit Agreement (which may include the roll-over of the existing term loans in lieu of the Refinancing with respect thereto) in which case the terms of this Commitment Letter (including the Term Facility Term Sheet) shall apply to such amendment mutatis mutandis.

A-2

EXHIBIT B

Project Fresh

$675 million Term Facility

Summary of Principal Terms and Conditions

B-1

B-2

B-3

B-4

B-5

B-6

B-7

B-8

B-9

B-10

B-11

EXHIBIT C

Project Fresh

$150 million ABL Facility

Summary of Principal Terms and Conditions¹

C-1

C-2

C-3

C-4

C-5

C-6

C-7

C-8

C-9

C-10

C-11

C-12

C-13

C-14

EXHIBIT D

Project Fresh

$325 million Senior Bridge Facility

Summary of Principal Terms and Conditions²

D-1

D-2

D-3

D-4

ANNEX D-I

Senior Extended Term Loans

D-I-1

D-I-2

ANNEX D-II

Senior Exchange Notes

D-II-1

D-II-2

EXHIBIT E

Project Fresh

$675,000,000 Term Facility

$150,000,000 ABL Facility

$325,000,000 Senior Bridge Facility

Summary of Additional Conditions Precedent

Capitalized terms used in this Exhibit E but not defined herein shall have the meanings set forth in the other Exhibits attached to the commitment letter to which this Exhibit E is attached (the “Commitment Letter”). In the case of any such capitalized term that is subject to multiple and differing definitions, the appropriate meaning thereof in this Exhibit E shall be determined by reference to the context in which it is used.

The initial borrowing under the Facilities shall be subject to the following additional conditions precedent:

1. Concurrently with the initial funding under the Facilities and (if applicable) the issuance of the Senior Notes, the Acquisition shall have been consummated in accordance with the terms and conditions of the Acquisition Agreement, and the Acquisition Agreement shall not have been altered, amended or otherwise changed or supplemented or any provision or condition therein waived, and neither Holdings nor any affiliate thereof shall have consented to any action which would require the consent of Holdings or such affiliate under the Acquisition Agreement, if such alteration, amendment, change, supplement, waiver or consent would be adverse to the interests of the Lenders in any material respect, in any such case without the prior written consent of the Arranger (it being understood and agreed that (i) any reduction in purchase price in excess of 10% or any increase in purchase price shall be deemed to be materially adverse to the Lenders, (ii) any decrease in the purchase price of 10% or less shall not be deemed to be materially adverse to the Lenders but shall be applied to a pro rata reduction of the Term Facility and the Senior Bridge Facility and (iii) any alteration, supplement, amendment, modification, waiver or consent with respect to the so-called “Xerox” provisions of the Acquisition Agreement providing protection with respect to exclusive jurisdiction, waiver of jury trial, liability caps and third party beneficiary status for the benefit of the Agents, the Lenders and their respective affiliates shall be deemed to be adverse to the interests of the Lenders in a material respect).

2. The Refinancing shall have been consummated and, unless the Existing Credit Agreement is amended and restated as contemplated by Exhibit A, all commitments, security interests and guaranties in connection therewith shall have been terminated and released, all to the reasonable satisfaction of the Agents. After giving effect to the consummation of the Transaction, Holdings and its subsidiaries shall have no third party indebtedness for borrowed money other than (i) the Senior Notes and/or the Senior Bridge Facility, (ii) the Senior Secured Credit Facilities and (iii) other indebtedness consisting of grower lowers, capitalized leases and other indebtedness incurred in the ordinary course of business in an aggregate principal amount pursuant to this clause (iii) not to exceed $30 million. On a pro forma basis, immediately after giving effect to the Transaction, the Borrower and its subsidiaries shall have unrestricted cash and cash equivalents of not less than $60 million.

3. Holdings shall have received cash from the Common Equity Financing equal to the amounts and in the forms specified for in Exhibit A to the Commitment Letter and Holdings shall have contributed all proceeds of the Cash Common Equity Financing to Merger Sub as a common equity contribution.

E-1

4. Each Credit Party and the applicable Lenders shall have executed and delivered, with respect to the Term Facility, the Term Facility Documentation, with respect to the ABL Facility, the ABL Credit Documentation and, with respect to the Senior Bridge Facility, the Senior Bridge Loan Documentation, in each case, to which they are parties. The Guaranties and Security Agreements required by the Term Facility Term Sheet, the ABL Facility Term Sheet and the Bridge Facility Term Sheet shall have been executed and delivered, and, subject to the Limited Conditionality Provisions, the Lenders under the ABL Facility and the Term Facility shall have a first priority perfected security interest in all assets of the Borrower and the Guarantors as, and to the extent, required by the Term Facility Term Sheet and the ABL Facility Term Sheet and (iv) the Acquisition Agreement Representations shall be accurate in all material respects and the Specified Representations shall be accurate in all material respects.

5. The Lenders shall have received (1) customary legal opinions from counsel (including, without limitation, New York counsel) in form, scope and substance reasonably acceptable to the Agents, (2) a solvency certificate, in substantially the form attached hereto as Annex I, from the chief financial officer of Holdings and (3) customary evidence of authority, customary officer’s certificates, customary borrowing requests, customary Uniform Commercial Code lien searches with respect to the Borrower and the Guarantors and evidence of good standing (to the extent applicable) in the respective jurisdictions of organization of the Borrower and the Guarantors.

6. The Agents shall have received (1) audited consolidated balance sheets and related statements of income and cash flows of the Acquired Business for the three fiscal years of the Acquired Business ended at least 60 days prior to the Closing Date, (2) unaudited consolidated balance sheets and related statements of income and cash flows of the Acquired Business for each fiscal quarter (other than the quarter ending December 28, 2013) of the Acquired Business ended after the close of its most recent fiscal year and at least 45 days prior to the Closing Date and (3) pro forma selected consolidated financial statements of Holdings and its subsidiaries (including the Acquired Business) meeting the requirements of Regulation S-X for registration statements (as if such a registration statement for a debt issuance of the Borrower, guaranteed by Holdings, became effective on the Closing Date) on Form S-1 and a pro forma consolidated statement of income of the Borrower for the four fiscal quarter period ending on the last day of the most recently completed four fiscal quarter period ended at least 45 days before the Closing Date (or 90 days prior to the Closing Date in case such four quarter fiscal period is the end of the Acquired Business’ fiscal year), prepared after giving effect to the Transaction as if the Transaction had occurred at the beginning of such period.

7. With respect to each of the Senior Secured Credit Facilities, the Lead Arrangers shall have had a period of not less than 15 consecutive business days after completion of a customary confidential information memorandum with respect to the Senior Secured Credit Facilities to market and syndicate the Senior Secured Credit Facilities (provided that (i) such period shall commence after September 2, 2013, (ii) November 29, 2013 shall be excluded as a business day for such purposes and (iii) such period shall either end on or prior to December 20, 2013 or commence after January 6, 2014). With respect to the Senior Bridge Facility, you shall have engaged one or more investment banks satisfactory to the Lead Arrangers (collectively, the “Investment Bank”) to sell or place the Senior Notes and shall ensure that (a) the Investment Bank and the Lead Arrangers each shall have received, not later than 15 business days prior to the Closing Date (provided that (i) such period shall commence after September 2, 2013, (ii) November 29, 2013 shall be excluded as a business day for such purposes and (iii) such period shall either end on or prior to December 20, 2013 or commence after January 6, 2014) a draft preliminary prospectus or preliminary offering memorandum or preliminary private placement

E-2

memorandum (collectively, the “Offering Documents”) suitable for use in a customary “high-yield road show” relating to the Senior Notes, in each case, which contain all financial statements and other data to be included therein (including all audited financial statements, all unaudited financial statements (which shall have been reviewed by the independent accountants as provided in Statement on Auditing Standards No. 100) and all pro forma financial statements, business and other financial data of the type and form that are customarily included in private placements pursuant to Rule 144A promulgated under the Securities Act (subject to customary exceptions including information regarding executive compensation and information required by Regulation S-X Rule 3-10 and Regulation S-X Rule 3-16) or that would be necessary for the Investment Bank to receive customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with the offering of the Senior Notes (and you shall have made commercially reasonable efforts to arrange the delivery of such comfort or, if no Senior Notes were issued, a draft thereof) and (b) the Investment Bank shall have been afforded a period of at least 15 consecutive business days following receipt of an Offering Document including the information described in clause (a) above to seek to place the Senior Notes with qualified purchasers thereof (provided that (i) such period shall commence after September 2, 2013, (ii) November 29, 2013 shall be excluded as a business day for such purposes and (iii) such period shall either end on or prior to December 20, 2013 or commence after January 6, 2014).

8. As a condition to the availability of the ABL Facility, the Borrower shall have delivered a Borrowing Base Certificate signed by a responsible financial officer of the Borrower calculating the Borrowing Base as of the last day of the most recent fiscal month of the Borrower ended at least 15 business days prior to the Closing Date.

9. All costs, fees, expenses (including, without limitation, legal fees and expenses) and other compensation contemplated by the Commitment Letter and the Fee Letter, payable to each Agent and the Lenders or otherwise payable in respect of the Transaction shall have been paid to the extent due to the extent, in the case of expenses, invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by Holdings).

10. To the extent requested at least five business days prior to the Closing Date by the Agents, the Agents shall have received, at least two business days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.

E-3

Annex I

Project Fresh

Form of Solvency Certificate

                 , 20    

This Solvency Certificate (this “Certificate”) is delivered in connection with the [INSERT NAME OF FACILITY] dated as of                  , 20     (as amended, supplemented, restated, replaced or otherwise modified from time to time, the “Credit Agreement”), among [INSERT NAMES OF PARTIES TO CREDIT AGREEMENT]. Capitalized terms used herein that are defined in the Credit Agreement are used herein as so defined

I am the duly qualified and acting Chief Financial Officer of Dole Food Company Inc. (the “Company”) and in such capacity, I believe as of the date hereof that:

Immediately after giving effect to the Transaction, the Company and its Subsidiaries, on a consolidated basis, are Solvent.

As used herein “Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they become absolute and matured and (d) such Person is not engaged in any business, as conducted on such date and as proposed to be conducted following such date, for which such Person’s property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

[SIGNATURE PAGE FOLLOWS]

E-4

I represent the foregoing information is provided to the best of my knowledge and belief and execute this Certificate this      day of              20    .

E-5

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Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘SC 13D/A’ Filing		Date		Other Filings
		2/11/14
		1/6/14
		12/28/13
		12/20/13		4
		11/29/13
		9/2/13
Filed on:		8/12/13		8-K,  DEFA14A
		8/11/13		8-K
		12/29/12		10-K
		3/9/09
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Filing Submission 0001193125-13-331041   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

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