Professional Documents
Culture Documents
20-F - Dole
20-F - Dole
20-F - Dole
FORM 20-F
_____________________
(Mark One)
☐ REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
OR
☒ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
OR
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
OR
☐ SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
_____________________
Dole plc
(Exact name of Registrant as specified in its charter)
N/A
(Translation of Registrant’s name into English)
Ireland
(Jurisdiction of incorporation or organization)
98-1610692
(I.R.S. Employer Identification No.)
Jacinta Devine
Chief Financial Officer
353-1-887-2600
jacinta.devine@dole.com
29 North Anne Street, Dublin 7,
D07 PH36, Ireland
(Name, E-mail and Address of Company Contact Person)
_____________________
Securities registered or to be registered pursuant to Section 12(b) of the Act.
Title of each class Trading Symbol(s) Name of each exchange on which registered
Ordinary Shares, $0.01 par value per share DOLE The New York Stock Exchange
Securities registered or to be registered pursuant to Section 12(g) of the Act. (Title of Class)
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act. (Title of Class)
Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report: 94,929,179 Ordinary shares, par value $0.01 per share.
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
☒ Yes ☐ No
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
☐ Yes ☒ No
Note – Checking the box above will not relieve any registrant required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 from their obligations under those Sections.
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 ☐ No
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for
such
shorter period that the registrant was required to submit such files).
☒ Yes ☐ No
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or
an emerging growth company. See definition of “large accelerated filer,” “accelerated filer,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☒ Accelerated filer ☐
Non-accelerated filer ☐ Emerging growth company ☐
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised
financial accounting standards† provided pursuant to Section 13(a) of the Exchange Act. ☐
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of
the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☒
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the
registrant included in the filing reflect the correction of an error to previously issued financial statements. ☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive based compensation received by any of the registrant’s executive officers during the relevant recovery period
pursuant to §240.10D-1(b). ☐
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
U.S. GAAP ☒ International Financial Reporting Standards as issued by the International Accounting Standards Board ☐ Other ☐
If “Other” has been checked in response to the previous question, indicate by check mark which financial statement item the registrant has elected to follow.
☐ Item 17 ☐ Item 18
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
☐ Yes ☒ No
Table of Contents
Page
Part I
Certain Defined Terms 5
Forward-Looking Statements 5
Part II
Item 13. Defaults, Dividend Arrearages and Delinquencies 81
Item 14. Material Modifications to the Rights of Security Holders and Use of Proceeds 81
Item 15. Controls and Procedures 81
Item 16. [Reserved] 82
Item 16A. Audit committee financial expert 82
Item 16B. Code of Ethics 82
Item 16C. Principal Accountant Fees and Services 82
Item 16D. Exemptions from the Listing Standards for Audit Committees 83
Item 16E. Purchases of Equity Securities by the Issuer and Affiliated Purchasers 83
Item 16F. Change in Registrant’s Certifying Accountant 83
Item 16G. Corporate Governance 83
Item 16H. Mine Safety Disclosure 84
Item 16I. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections 84
Item 16J. Insider trading policies 84
Item 16K. Cybersecurity 84
Part III
Item 17. Financial Statements 86
Item 18. Financial Statements 86
Item 19. Exhibits 86
Signatures 88
Background and Certain Defined Terms
In this report, unless otherwise specified, the terms “we”, “our”, “us”, the “Group”, the “Company” and “Dole” refer to Dole plc, individually or together with its subsidiaries, as the context may require. References to “Dole plc”
refer to the registrant.
References to “Total Produce” refers to Total Produce plc, together with its subsidiaries, and references to “Legacy Dole” and “Dole Food Company” refer to DFC Holdings, LLC, together with its subsidiaries, prior to the
transactions completed on July 29, 2021 (the “Acquisition Date”) (referred to herein as the “Merger”) pursuant to the Transaction Agreement. The Merger between Total Produce and Legacy Dole was accounted for under the acquisition
method of accounting, with Total Produce deemed to be the acquirer for financial accounting purposes (the “Acquisition”). Accordingly, Total Produce’s historical financial statements are the historical financial statements of the
combined company for the periods prior to the Acquisition Date. See Note 4 “Acquisitions and Divestitures” to the consolidated financial statements included herein for further detail.
References to the “Transaction”, “IPO Transaction” or “IPO” refers to the initial public offering of Dole plc on the New York Stock Exchange (“NYSE”) that consummated on July 30, 2021 and closed on August 3, 2021 (the
“Closing Date”).
References to “Mr. Murdock” or “C&C Parties” refer to David H. Murdock and his affiliates, the former majority owner of Legacy Dole prior to the Merger.
The term “F-1 Filing” refers to the Registration Statement on Form F-1 (File No. 333-257621) that was filed on July 2, 2021 by Dole plc and amended on July 19, 2021, July 22, 2021 and July 28, 2021.
References to the “Annual Report” refer to the information on Form 20-F for the year ended December 31, 2023 filed herein.
The term “Credit Agreement” refers to the March 26, 2021 credit agreement with Coöperatieve Rabobank U.A., New York Branch, as amended from time to time.
The term “Relevant Territory” is a European Union (“EU”) member state other than Ireland, or a country which Ireland has a double tax agreement.
Forward-Looking Statements
The following discussion about our business and analysis of our financial condition, results of operations and notes to the consolidated financial statements included herein may contain forward-looking statements that relate to our
plans, objectives, estimates and goals and involve risks and uncertainties. Our actual results could differ materially from the forward-looking statements included herein. Statements regarding our future and projections relating to
products, sales, revenue, expenditures, costs and earnings are typical of such statements. Factors that could cause or contribute to such differences include, but are not limited to, those identified below and those discussed in “Item 3D.
Risk Factors.”
5
The Annual Report on Form 20-F contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934 relating to our operations, results of
operations and other matters that are based on our current expectations, estimates, assumptions and projections. Forward-looking statements are based on management’s beliefs, assumptions and expectations of our future economic
performance, considering the information currently available to management. These statements are not statements of historical fact. The words “believe,” “may,” “could,” “will,” “should,” “would,” “anticipate,” “estimate,” “expect,”
“intend,” “objective,” “seek,” “strive,” “target” or similar words, or the negative of these words, identify forward-looking statements. The inclusion of this forward-looking information should not be regarded as a representation by us or
any other person that the future plans, estimates or expectations contemplated by us will be achieved. Such forward-looking statements are subject to various risks and uncertainties and assumptions relating to our operations, financial
results, financial condition, business prospects, growth strategy and liquidity. Accordingly, there are, or will be, important factors that could cause our actual results to differ materially from those indicated in these statements. All such
risk factors are difficult to predict, contain uncertainties that may materially affect actual results and may be beyond our control. New risk factors emerge from time to time, and it is not possible for management to predict all such risk
factors or to assess the impact of each such risk factor on the Company. Any forward-looking statement speaks only as of the date on which such statement is made, and we do not undertake any obligation to update any forward-looking
statement to reflect events or circumstances after the date on which such statement is made, except as required by the federal securities laws. If one or more risks or uncertainties materialize, or if our underlying assumptions prove to be
incorrect, our actual results may vary materially from what we may have expressed or implied by these forward-looking statements. We caution that you should not place undue reliance on any of our forward-looking statements.
6
Table of Contents
PART I
Not applicable.
Not applicable.
Not applicable.
Not applicable.
7
Table of Contents
D. Risk factors
RISK FACTORS
An investment in our Ordinary shares involves a high degree of risk. You should carefully consider the risks and uncertainties described below together with the other information set forth in this Annual Report. If any of the
following risks or uncertainties actually occur, our business, financial position and results of operations could be materially and adversely affected. In such case, the trading price of our Ordinary shares could decline, and you may lose all
or part of your investment. Our business, financial condition, prospects, results of operations or cash flows could also be harmed by risks and uncertainties not currently known to us or that we currently do not believe are material. We
cannot assure you that any of the events discussed in the risk factors below will not occur. The risks described below are organized by risk type and are not listed in order of their priority to us.
Adverse weather conditions, natural disasters, crop disease, pests and other natural conditions, including the effects of climate change, can impose significant costs and losses on our business.
Fresh produce is vulnerable to adverse weather conditions, including windstorms, floods, drought and temperature extremes, which are quite common but difficult to predict, the effects of which may be influenced and intensified
by ongoing global climate change. Unfavorable growing conditions can reduce both crop size and crop quality. This risk is particularly acute with respect to regions or countries from which we source a significant percentage of our
products. In extreme cases, entire harvests may be lost in some geographic areas. In addition, weather patterns may affect consumer demand, creating shortages in key products. For example, we experience an increased demand for salads
during summer months, and prolonged warm weather may stress our ability to meet such demand. Conversely, extended bouts of cold or other inclement weather may depress such demand, leading to wasted product. Adverse weather
may also impact our supply chains, preventing us from procuring supplies necessary to run our operations and delivering our products to our customers. Effects of climate change, such as outsized weather events and natural disasters may
prolong or worsen such impacts. For example, our operations have been adversely impacted by hurricanes in recent years and in the past year we have been monitoring the onset of the El Niño climatic conditions which could disrupt
many of our key growing regions in Central and South America. Such adverse conditions can increase costs, decrease revenue and lead to additional charges, which may have an adverse effect on our business, financial condition and
results of operations.
Fresh produce is also vulnerable to crop disease and to pests, which may vary in severity and effect, depending on the stage of production at the time of infection or infestation, the type of treatment applied, climatic conditions and
the risks associated with ongoing global climate change. For example, black sigatoka is a fungal disease that affects banana cultivation in most areas where they are grown commercially.
Tropical Race 4 (“TR4”) may impose significant costs and losses on our business.
We have seen instances of Banana Fusarium Wilt Tropical Race 4 (“TR4”), a serious vascular crop disease that affects bananas, in some areas where we source product. TR4 significantly reduces productivity of banana crops and
destroys affected banana plants. In the 1950’s, a predecessor disease to TR4, Banana Fusarium Wilt Tropical Race 1 (“TR1”), resulted in the banana industry discontinuing cultivation of the Gros Michel banana, which is susceptible to
TR1, and moving to the Cavendish variety. While TR4 is a significant threat to the Cavendish banana, other options currently exist and are being developed. For example, a TR4-tolerant banana variety has been identified and is currently
being used in Asia and Australia where TR4 has been present for many years. It is approximately 15-20% less productive than the Cavendish, however, making production costs higher.
8
Table of Contents
Although we have yet to experience any material impacts to our growing or sourcing operations, we continuously monitor TR4 and make improvements to our existing biosecurity and other prevention strategies. For example, we
are conducting site-specific TR4 prevention activities throughout Latin America, in coordination with local authorities and international experts, to contain and prevent spread, using a risk-based mitigation plan. We have also developed
contingency plans should TR4 impact our operations at some point, including the potential deployment of conventionally-bred, gene-edited or genetically modified (“GMO”) banana plants more resistant or immune to the disease. Future
costs are uncertain and will depend on the extent of any continued spread of the disease. For more information about gene-edited and GMO banana plants, see “Risk Factors—Some of the ingredients that we use in our products contain
GMOs and we may in the future need to develop and market GMO products and products containing GMO ingredients based on adverse market conditions.”
We may be unable to prevent TR4’s spread or develop bananas fully resistant to the disease, causing increased costs or decreased revenues, which may have an adverse effect on our business, financial condition and results of
operations. Efforts to develop a fully resistant plant may not succeed, but if those efforts do succeed, fruit from fully resistant plants may not be marketable due to consumer preference or government regulation.
We are subject to the risk of product contamination and product liability claims.
The sale of food products for human consumption involves the risk of injury to consumers. Such injuries may result from tampering by unauthorized third parties and quality issues such as product contamination or spoilage,
including the presence of foreign objects, substances, chemicals or other agents or residues introduced during the growing, storage, processing, handling or transportation phases. From time-to-time, we have been involved in product
liability lawsuits, and we cannot be sure that consumption of our products will not cause a health-related illness in the future, that we will not be subject to claims or lawsuits relating to such matters or that we will not need to initiate
recalls of our products in response to the foregoing. In the past, we have initiated recalls, including Class I recalls, for possible contamination of produce with allergens or bacteria, such as Salmonella, E. coli and Listeria monocytogenes.
For example, we issued voluntary recalls in December 2021 and January 2022 and temporarily ceased operations at our facilities in Ohio and Arizona, after packaged salads produced at those facilities were found to have been
contaminated with Listeria monocytogenes. Even if a product liability claim is unsuccessful or is not fully pursued, the negative publicity surrounding any assertion that our products caused illness or injury could adversely affect our
reputation with existing and potential customers and our corporate and brand image. Moreover, claims or liabilities of this sort might not be covered by our insurance or by any rights of indemnity or contribution that we may have against
others. We cannot be sure that we will not incur claims or liabilities for which we are not insured or that exceed the amount of our insurance coverage.
Some of the ingredients that we use in our products contain GMOs and we may in the future need to develop and market GMO products and products containing GMO ingredients based on adverse market conditions.
Some of the ingredients that we use in our products may contain GMOs in varying proportions. The use of GMOs in food has been met with varying degrees of acceptance in the territories in which we operate. Some of such
territories, including the United States (“U.S.”), have approved the use of GMOs in food products, and GMO and non-GMO products in such territories are produced together and frequently commingled. Regulations will or may be
passed that require labeling of any food with GMO ingredients, such as a regulation that went into effect on January 1, 2022 in the U.S. Such labeling requirements may impact the public perception of products containing such labels.
Elsewhere, adverse publicity about genetically modified food has led to governmental regulation limiting sales of GMO products in some of the territories in which we operate, including the EU. It is possible that new restrictions on
GMO products will be imposed in major territories for some of our products or that our customers will decide to purchase fewer GMO products or not buy GMO products at all, which could adversely affect our business, financial
condition and results of operations.
In addition to the GMO ingredients that we currently deploy, we are researching gene-edited products and GMO products and may deploy and market these products in the future based on market demand and need. The success of
such deployment will in large part depend on the market acceptance of these products in the areas that we operate. In the future, we may be forced to utilize gene-edited or GMO products in response to adverse market conditions,
including disease, climate change or rising costs, if such products are the only viable alternatives. For example, as a result of TR4 spreading into new growing regions, we may need to deploy gene-edited or GMO bananas resistant to the
disease to maintain a viable supply of bananas to our key markets. If adverse public opinion about gene-edited or GMO products predominates, we may be unable to sell such products in certain key markets, adversely affecting our
business, financial condition and results of operations. For more information about TR4, see “Risk Factors—Tropical Race 4 (“TR4”) may impose significant costs and losses on our business.”
9
Table of Contents
Our future results of operations may be adversely affected by the availability of organic and non-GMO products and ingredients.
Our ability to ensure a continuing supply of organic and non-GMO products and ingredients at competitive prices depends on many factors beyond our control, such as the number and size of farms that grow organic and non-GMO
crops, climate conditions, changes in national and world economic conditions, currency fluctuations and forecasting adequate need of seasonal products and ingredients.
The organic and non-GMO ingredients that we use in the production of our products, including, among others, fruits, vegetables, nuts and grains, are vulnerable to adverse weather conditions and natural disasters, such as floods,
droughts, water scarcity, temperature extremes, frosts, earthquakes and pestilences. Natural disasters and adverse weather conditions, including the potential effects of climate change, can lower crop yields and reduce crop size and crop
quality, which in turn could reduce our supplies of, or increase the prices of, organic or non-GMO ingredients. If our supplies of organic or non-GMO ingredients are reduced, we may not be able to find enough supplemental supply
sources on favorable terms, if at all, which could impact our ability to supply product to our customers and adversely affect our business, financial condition and results of operations.
Our operations are influenced by agricultural policies. Changes in these and other comparable programs could have an adverse effect on our business, financial condition and results of our operations.
We are affected by governmental agricultural policies such as price supports and acreage set aside programs, and these types of policies may affect our business. The production levels, markets and prices of the grains and other raw
products that we use in our business are materially affected by government programs that include acreage control and price support programs, including policies of the U.S. Department of Agriculture, the EU’s Common Agricultural
Policy and similar programs in other jurisdictions. Changes in these and other comparable programs could have an adverse effect on our business, financial condition and results of our operations.
Our business is highly competitive, and we cannot assure you that we will maintain our current market share.
We face strong competition from many companies in all of our product lines. Our main competitors in the international banana business include Chiquita Brands International, Fresh Del Monte Produce and Fyffes. The
international pineapple and diversified fruit categories have a large number of exporters, importers and cooperatives competing in the sector. Our primary competitor in pineapples is Fresh Del Monte Produce, and our competitors in the
diversified fruit category include the South African company, Core Fruit, the Chilean company, Frusan, and the multinational company, Unifrutti. In berries, our competitors include Driscoll Strawberry Associates, Naturipe Farms,
California Giant Berry Farms and Well-Pict Berries. In fresh vegetables, we face competition from large grower-shippers in the U.S. and Mexico that supply a significant portion of the U.S. market, with numerous smaller independent
distributors also competing. We also face competition from grower cooperatives and local champions in each of our markets.
10
Table of Contents
There can be no assurance that we will continue to compete effectively with our present and future competitors.
An extended interruption in our ability to ship our products could have an adverse effect on our business, financial condition and results of operations. Similarly, any extended disruption in the distribution of our products could
have an adverse effect on our business, financial condition and results of operations. We rely on third-party shipping companies to move some of our products overseas, third-party stevedores to load and unload our products at our port
locations and third-party trucking companies to transport our products to and from our port locations, and these third parties are therefore a source of transportation risk. While we believe we are adequately insured and would attempt to
transport our products by alternative means if we were to experience an interruption due to a strike, natural disaster or otherwise, we cannot be sure that we would be able to do so, or be successful in doing so, in a timely and cost-
effective manner.
Our earnings are sensitive to fluctuations in market prices and demand for our products.
Excess supply often causes severe price competition in our businesses. Growing conditions in various parts of the world, particularly weather conditions such as windstorms, fires, floods, droughts and freezes, as well as diseases
and pests, are primary factors affecting market prices because of their influence on the supply and quality of products. Additionally, the application of tariffs and restrictions on free trade by nations or trading blocs can impact prices if
competitor volumes are diverted into our core markets from markets where we do not compete as strongly.
Although the perishability of fresh produce varies to a certain degree by item (for example, bananas will typically keep fresh in temperature-controlled storage for longer than lettuce), fresh produce is, as a general matter, highly
perishable and must be brought to market and sold soon after harvest. The selling price received for each type of produce depends on all of these factors, including the availability and quality of the produce item in the market and the
availability and quality of competing types of produce.
In addition, general public perceptions regarding the quality, safety or health risks associated with particular food products could reduce demand and prices for some of our products. To the extent that consumer preferences evolve
away from products that we produce for health or other reasons, and we are unable to modify our products or to develop products that satisfy new consumer preferences, there will be a decreased demand for our products. However, even
if market prices are unfavorable, produce items which are ready to be, or have been, harvested must be brought to market promptly. A decrease in the selling price received for our products due to the factors described above could have an
adverse effect on our business, financial condition and results of operations.
Some of Dole’s divisions operate in functional currencies other than the U.S. dollar, including the euro, Swedish krona, British pound sterling, Canadian dollar, Czech koruna and Danish krone. Therefore, the results of our
operations as expressed in U.S. dollars may be significantly affected by fluctuations in foreign exchange rates. The net assets and results of these divisions are exposed to foreign currency translation gains and losses, which are included
as a component of accumulated other comprehensive loss in stockholders’ equity.
We grow, source, import, package, market and distribute over 300 products that are sourced, grown, processed, marketed and distributed in over 30 countries. Our international sales are usually transacted in U.S. dollar and
European currencies. Our results of operations are affected by fluctuations in currency exchange rates in both sourcing and selling locations. Although we enter into foreign currency exchange forward contracts from time to time to
reduce our risk related to currency exchange fluctuation, our results of operations may still be impacted by foreign currency exchange rates, primarily the euro-to-U.S. dollar, British pound sterling-to-U.S. dollar and Swedish krona-to-
U.S. dollar exchange rates. We are also subject to volatility in local sourcing and employee costs, primarily due to the Costa Rican Colón-to-U.S dollar and Chilean peso-to-U.S. dollar exchange rates. In recent years, the euro-to-U.S.
dollar exchange rate has been subject to substantial volatility which may continue, particularly in light of recent political events regarding the EU, including the exit of the United Kingdom (the “U.K.”) from the EU and the Ukraine
conflict. Because we do not hedge against all of our foreign currency exposure, our business will continue to be susceptible to foreign currency fluctuations.
11
Table of Contents
Increases in commodity or raw product costs, such as fuel and paper, due to inflation or otherwise, or changes to their availability, could adversely affect our operating results.
In the past, increased costs for purchased fruit and vegetables have negatively impacted our operating results, and there can be no assurance that they will not adversely affect our business, financial condition and results of
operations in the future.
In addition, the price and availability of various commodities can significantly affect our costs. For example, the price of bunker fuel used in shipping operations, including fuel used in ships that we own or charter, is an important
variable component of transportation costs. Fuel and transportation costs are a significant component of the price of much of the produce that we purchase from third parties, and there can be no assurance that we will be able to pass on
the increased costs we incur in these respects to customers.
The cost and availability of paper is also significant to us, because some of our products are packed in cardboard boxes for shipment. If the price of paper increases, and we are not able to effectively pass these price increases along
to our customers, then our operating income will decrease. Similarly, if the availability of paper is affected by increased global demand, our operations could be negatively impacted. Increased costs for paper have in the past negatively
impacted our operating results, and there can be no assurance that these increased costs will not adversely affect our business, financial condition and results of operations in the future.
Global capital and credit market issues could negatively affect our liquidity, increase our costs of borrowing and disrupt the operations of our suppliers and customers.
We depend in part on stable, liquid and well-functioning capital and credit markets to fund our operations. Although we believe that our operating cash flows, access to capital and credit markets and credit facility will permit us to
meet our financing needs for the foreseeable future, there can be no assurance that continued or increased volatility and disruption in the capital and credit markets, including rising interest rates and inflation, will not impair our liquidity
or increase our costs of borrowing. During the 2023 fiscal year, a series of adverse developments in the financial services industry further contributed to increased volatility in the capital and credit markets. Our business, financial
condition and results of operations could also be negatively impacted if our suppliers or customers experience disruptions resulting from tighter capital and credit markets or rising interest rates.
Public health outbreaks, epidemics or pandemics, including the COVID-19 pandemic, have disrupted and may continue to disrupt, our business and could materially affect our business, financial condition and results of
operations.
Events such as the COVID-19 pandemic and resulting worldwide economic conditions have affected, and in the future may continue to affect, our business, financial condition and results of operations.
The COVID-19 pandemic negatively impacted the global economy, disrupted global supply chains and created significant volatility and disruption of financial markets. For example, government imposed mandatory closures and
restrictions across various key global markets of ours resulted in volatile supply and demand conditions. While these effects were pronounced to varying degrees throughout fiscal years since 2020, the future extent of the impact of events
such as the COVID-19 pandemic or other public health outbreaks, on our financial performance, including our ability to execute our strategic initiatives, is uncertain and will depend on future developments, including the duration and
spread of this or a similar pandemic, the emergence of new variants, related government restrictions and the success of vaccines and other treatments.
In addition, our ability to continue to supply our products is highly dependent on our workforce, including our workers involved in the growing, harvesting, transportation, processing and distribution of our products. Our ability to
maintain the safety of our workforce may be significantly impacted by individuals contracting or being exposed to COVID-19 or similar viruses, and our operations and financial results may be negatively affected as a result. While we
continue to follow all governmental health requirements and regulations in the areas in which we operate and continue to take preventative and protective measures to ensure the safety of our workforce, we cannot be certain that these
measures will be successful in ensuring the health of our workforce against current or future pandemics. Additional workforce disruptions of this nature may significantly impact our ability to maintain our operations and may adversely
affect our financial results.
12
Table of Contents
The impact of a pandemic on our operating results can also impact our ability to meet our financial obligations. In the event of a continued sustained market deterioration or further delayed recovery, we may need additional
liquidity which would require us to evaluate available alternative strategies such as selling assets, restructuring or refinancing our indebtedness or seeking additional equity capital, which strategies could be unsuccessful. In addition,
during a pandemic, governments may restrict travel between countries and transportation in general to varying degrees, and this could impact the movement of our goods across international borders.
Our operations are heavily dependent upon products grown, purchased and sold internationally. In addition, our operations significantly contribute to the economies of many of the countries in which we operate, increasing our
visibility and susceptibility to legal or regulatory changes. These activities are subject to risks that are inherent in operating in foreign countries, including the following:
• foreign countries could change laws and regulations, or impose currency restrictions and other restraints;
• the risk that the government may expropriate assets;
• the potential imposition or implementation of burdensome tariffs, quotas or customs clearance processes;
• political changes and economic crises may lead to changes in the business environment in which we operate;
• conflict within a country in which we operate or international conflict, including terrorist acts, could significantly impact our business, financial condition and results of operations;
• economic sanctions may be imposed on some countries, which could disrupt the markets for products we sell, even if we do not sell into the target country;
• the suspension of imports of one or more products we sell, which could disrupt the markets for those products in other countries;
• dependency on leases and other agreements;
• global competitive, economic, industry, market, political and regulatory conditions, including economic downturns, political instability and war or civil disturbances that may disrupt production and distribution logistics or limit
sales in individual territories;
• trade wars between nations in which we do business; and
• the difficulty in adhering to various anti-corruption laws and regulations.
Additionally, as a company with international operations, we are subject to economic and trade sanctions laws and regulations in the jurisdictions in which we do business, including, as applicable, the U.S., the U.K. and the EU,
among others. These laws and regulations may have a broad jurisdictional reach. For instance, our non-U.S. affiliates may be required to comply with the sanctions administered by the U.S. Department of the Treasury’s Office of Foreign
Assets Control (“OFAC”), depending on the sanctions program involved or the nexus of the non-U.S. affiliate’s activities to the U.S. Economic sanctions typically prohibit or impose restrictions on dealings that involve certain foreign
jurisdictions, governments, individuals or entities. Moreover, the goods we sell may be subject to applicable export control laws and regulations, such as the Export Administration Regulations (“EAR”) administered by the U.S.
Department of Commerce’s Bureau of Industry and Security. The EAR generally govern the export, reexport and in-country transfer of items that are subject to the EAR, including U.S.-origin goods. Changes to applicable sanctions or
export control laws and regulations could result in decreased use of our products or hinder our ability to export or sell our products to existing or potential customers, which may adversely affect our operating results, financial condition
or strategic objectives. If we fail to comply with these laws and regulations, we could be subject to substantial civil or criminal penalties.
Dole has in the past and may in the future engage in the exportation of agricultural commodities pursuant to an OFAC general license or similar licenses under other economic and trade sanctions laws. For example, Dole has
exported fruit to distributors located in Iran and in other countries for onward shipment to Iran in reliance on an OFAC general license that authorizes such activities. This general license required Dole to comply with certain conditions
with respect to products sold, end-user limitations and payment terms. Although Dole believes it complied with the general license requirements for such sales and will comply with all applicable laws related to any future similar sales
should they occur, there can be no assurance that Dole would be deemed by OFAC to have been in compliance. Non-compliance with the general license or other sanctions laws could lead to a finding of a violation, which may result in
monetary penalties, reputational harm or other harm to our business.
13
Table of Contents
Dole is also subject to changes in the approach to tax laws in the countries in which we do business. For example, in December 2023, Ireland transposed the EU Minimum Tax Directive into its national law, thereby implementing a
jurisdiction by jurisdiction 15% minimum tax on corporate book income from January 1, 2024. The Company is continuing to assess the potential impact of these new rules.
Terrorism and the uncertainty of war may have an adverse effect on our operating results.
Terrorist attacks and other acts of violence or war in the U.S., the EU or in other countries may affect the markets in which we operate and our operations and profitability. From time to time in the past, our operations or personnel
have been the targets of terrorist or criminal attacks, and the risk of such attacks impacts our operations and results in increased security costs. Further terrorist attacks outside the U.S., against the U.S. or against operators of businesses
with significant presence or history in the U.S. may occur, or hostilities could develop based on the current international situation. The potential near-term and long-term effect these attacks may have on our business operations, our
customers, the markets for our products, including pricing if commodities are shifted from one area of the world to another, the U.S. economy and the economies of other places in which we source or sell our products is uncertain. The
consequences of any terrorist attacks, or any armed conflicts, are unpredictable, and we may not be able to foresee events that could have an adverse effect on our markets or our business. Although we do not believe the current conflicts
between Ukraine and Russia and Israel and Palestine create a material risk to our business in the near term, we are nonetheless monitoring the conflicts closely and adjusting our business as needed.
The exit by the U.K. from the EU could adversely affect us.
The U.K. formally exited the EU (“Brexit”) on December 31, 2020. The U.K. and the EU reached agreement in principle on the terms of the EU-U.K. Trade and Cooperation Agreement (the “EU-U.K. Agreement”), which became
provisionally applicable on January 1, 2021 and covers economic and security co-operation between the two, has a single overarching governance framework, and covers a wide range of topics, including trade in goods and in services.
The scope of the EU-U.K. Agreement is narrower than the pre-Brexit trade framework, and the effects of Brexit will depend in part on any further agreements the U.K. makes to retain access to the EU or to compensate elsewhere with
agreements with other global markets. Accordingly, Brexit could adversely affect U.K. and European market conditions, could contribute to instability in some global financial and foreign exchange markets, including continued volatility
in the value of the British pound sterling, require the U.K. to establish or renegotiate trade relationships with other countries or otherwise adversely affect trading agreements or similar cross-border cooperation arrangements (whether
economic, tax, legal, regulatory or otherwise).
The long-term effects of Brexit still remain uncertain. Any change in economic, trade or tariff policy could adversely affect our business, business opportunities, results of operations, financial condition and cash flows.
We may be unable to service our debt with our current or expected cash flows and such debt may limit our flexibility and ability to pursue additional financing. In addition, financial covenants and other restrictions within our
existing debt agreements may impact our ability to operate our business.
Our ability to make scheduled payments of the principal of, to pay interest on or to refinance our indebtedness, depends on our future performance, which is subject to economic, financial, competitive and other factors beyond our
control, including those described in this “Risk Factors” section and elsewhere in this document. Our business may not generate sufficient cash flow from operations to service our debt and make necessary capital expenditures. If we are
unable to generate such cash flow, we may be required to adopt one or more alternatives, such as selling assets, restructuring debt or obtaining additional financing on terms that may be onerous or highly dilutive. Our ability to refinance
our indebtedness will depend on the capital markets and our financial condition at such time. We may not be able to engage in any of these activities or engage in these activities on desirable terms, which could result in a default on our
debt obligations. In addition, financial covenants and other restrictions within our existing debt agreements may impact our ability to operate our business. See Note 14 “Debt” to the consolidated financial statements included herein for
additional detail on the Company’s indebtedness.
14
Table of Contents
Certain of our defined benefit pension plans are currently underfunded, and we may have to make significant cash payments to the plans, which would reduce the cash available for our business.
We have underfunded obligations under certain of our benefit plans. The funded status of our benefit plans is dependent upon many factors, including returns on any invested assets, actuarial assumptions, including the level of
certain market interest rates and the discount rate used to determine pension obligations. Unfavorable returns on the plan assets, or unfavorable changes in applicable laws or regulations, could materially change the timing and amount of
required plan funding, which would reduce the cash available for our business. In addition, a decrease in the discount rate used to determine pension obligations could result in an increase in the valuation of our benefit plans obligations,
which could affect the reported funding status of our benefit plans and future contributions, as well as the periodic pension cost in subsequent fiscal years. The Employee Retirement Income Security Act of 1974 (“ERISA”), as amended,
along with certain provisions of the U.S. Internal Revenue Code of 1986 (the “Code”), require minimum funding contributions to our tax-qualified U.S. defined benefit pension plan. See Note 15 “Employee Benefit Plans” to the
consolidated financial statements included herein for additional detail on the Company’s pension plans.
The Pension Benefit Guaranty Corporation (the “PBGC”) has the authority to petition a court to terminate an underfunded tax-qualified pension plan under limited circumstances. In the event our U.S. tax-qualified defined benefit
pension plan is terminated by the PBGC, we could be liable to the PBGC for the entire amount of the underfunding, as calculated by the PBGC based on its own assumptions, which might result in a larger obligation than that based on
the assumptions we have used to fund such plan.
The European defined benefit plans are also subject to local regulators such as the Irish Pensions Authority and U.K.’s Pension Regulator. The Company has two defined benefit plans in Ireland, two U.K. defined benefit plans and
one in Canada. Each of these is subject to local funding requirements and the powers of local regulators such as the Irish Pensions Authority and the U.K.’s Pension Regulator. The U.K.’s Pension Regulator has the power in certain
circumstances to impose a debt or contribution demand on an employer to the extent that a defined benefit scheme is underfunded. There is currently no legislation in Ireland equivalent to that in the U.K. We also have underfunded
obligations under plans in Latin America which may be subject to funding requirements set by local regulations.
We expect to expand our business, in part, through future acquisitions, but we may not be able to identify or complete suitable acquisitions, which could harm our business, financial condition and results of operations.
Our business strategy includes growth through the acquisitions of other businesses. We continually review, evaluate and consider potential acquisitions. In such evaluations, we are required to make difficult judgments regarding the
value of business opportunities and the related risks and cost of potential liabilities. We plan to use acquisitions of companies to expand our geographic coverage, add experienced management and increase our product offerings. We may
not be able to continue to identify attractive acquisition opportunities or successfully acquire identified targets. In addition, we may not be successful in integrating our current or future acquisitions which may result in unforeseen
operational difficulties or diminished financial performance or require a disproportionate amount of our management’s attention. Even if we are successful in integrating our current or future acquisitions into our existing operations, we
may not derive the benefits, such as operational or administrative synergies, that we expected from such acquisitions, which may result in the investment of our capital resources without realizing the expected returns on such investment.
Furthermore, competition for acquisition opportunities may increase our cost of making further acquisitions or cause us to refrain from making additional acquisitions. We also may be limited in our ability to incur additional indebtedness
in connection with or to fund future acquisitions under the Credit Agreement. In addition, although we have dedicated in-house personnel whose primary role is to focus on acquisitions, the time and effort involved in attempting to
identify acquisition candidates and consummate acquisitions may divert members of our management from the operations of our company.
15
Table of Contents
We may be required to recognize impairment charges for our goodwill and other intangible assets, which could materially and adversely affect our business and results of operations.
From various business combinations, material amounts of purchase consideration have been allocated to goodwill and certain intangible assets that have indefinite lives. Most significantly, the acquisition of Dole Food Company in
July of 2021 resulted in approximately $273.3 million of allocated goodwill and $306.3 million allocated to the DOLE brand. Goodwill and other indefinite-lived intangible assets are tested at least annually for impairment. According to
our fiscal year 2023 annual assessment, two of our reporting units and the DOLE brand were at risk of future impairment. Adverse changes in economic conditions leading to higher costs of capital or projected future cash flows could
materially affect the results of future assessments. In such case, we may be required to recognize impairment charges for our goodwill and other indefinite-lived intangible assets, which could have a material impact on our results of
operations. See “Item 5E. Critical Accounting Estimates-Goodwill and Indefinite-Lived Intangible Assets” and Note 13 “Goodwill and Intangible Assets” to the consolidated financial statements included herein for additional detail on the
impairment tests of goodwill and other indefinite-lived intangible assets.
We depend on certain key customers and are subject to risks if such key customers reduce the amount of products they purchase from us or terminate their relationships with us.
In certain regions our customer base is concentrated among a small number of large, key customers. If we fail to maintain our relationships with such customers and such customers terminate their relationship or otherwise reduce
the amount of products they purchase from us below our expectations, we could suffer adverse effects on our business, business opportunities, results of operations, financial condition and cash flows. See Note 2 “Basis of Presentation
and Summary of Significant Accounting Policies” to the consolidated financial statements included herein for additional detail on customer concentration risk.
We typically extend credit to our key customers. Failure to collect trade receivables, untimely collection or customer defaults could adversely affect our liquidity.
We extend credit to certain of our key customers. Generally, our customers will pay within the credit period, however, customer illiquidity may cause repayment to fall outside the credit period or not at all. We perform ongoing
credit evaluations of our customers’ financial condition and manage the risk based on experience, customers’ track record and historic default rates. If we encounter future problems collecting amounts due from our customers, particularly
customers with a large amount of credit outstanding, or if we experience delays or customer default in the collection of amounts due, our liquidity could be adversely affected. See Note 8 “Receivables and Allowances for Credit Losses”
to the consolidated financial statements included herein for additional detail on receivables outstanding.
A portion of our workforce is unionized, and labor disruptions could decrease our profitability.
Part of the Company’s full-time employees worldwide work under various collective bargaining agreements and unionized workforces. We cannot give assurance that we will be able to negotiate these or other collective bargaining
agreements on the same or more favorable terms as the current agreements, or at all, and without production interruptions, including labor stoppages. A prolonged labor dispute, which could include a work stoppage, could have an
adverse effect on the portion of our business affected by the dispute, which could adversely impact our business, financial condition and results of operations. See Note 15 “Employee Benefit Plans” to the consolidated financial
statements included herein for additional detail on workforce under various collective bargaining agreements and unionized workforces.
Adverse perception, events or rumors relating to our brand could negatively impact our business.
Consumer and institutional recognition of our trademarks and related brands, and the association of these brands with high-quality and safe food products, are an integral part of our business. The occurrence of any events or rumors
that cause consumers and/or institutions to no longer associate these brands with high-quality and safe food products may materially and adversely affect the value of our brand names and demand for our products. We have licensed and
will continue to license the Total Produce and DOLE brand name to several affiliated and unaffiliated companies for use in the U.S. and abroad. In addition, we sold the use of the DOLE brand in Asia, Australia and New Zealand for fresh
fruit, worldwide for certain shelf-stable packaged food products and worldwide for certain juice products. Acts or omissions by these companies, over which we have limited or no control, may also have such adverse effects.
In addition, sustainability credentials and goals are an increasingly important factor in stakeholders’ perceptions of a company. Should we not meet the expectations of our stakeholders or communicate our work in this area
sufficiently this may negatively impact our reputation.
16
Table of Contents
An interruption at one or more of our manufacturing facilities could negatively affect our business, and our business continuity plan may prove inadequate.
We own or lease, manage and operate a number of manufacturing, processing, packaging, storage and office facilities. We could be rendered unable to accept and fulfill customer orders as a result of disasters, pandemics, business
interruptions or other similar events. Some of our inventory and manufacturing facilities are located in areas that are susceptible to harsh weather, and the production of certain of our products is concentrated in a few geographic areas. In
addition, we store chemicals used in our business, and our storage of these chemicals could lead to risk of leaks, explosions or other events. Although we have business continuity plans, we cannot provide assurance that our business
continuity plan will address all of the issues we may encounter in the event of a disaster or other unanticipated issue. Our business interruption insurance may not adequately compensate us for losses that may occur from any of the
foregoing. In the event that a natural disaster, or other catastrophic event, were to destroy any part of any of our facilities or interrupt our operations for any extended period of time, or if harsh weather or epidemics prevent us from
delivering products in a timely manner, our business, financial condition and results of operations could be materially and adversely affected. In addition, if we fail to maintain our labor force at one or more of our facilities, we could
experience delays in production or delivery of our products, which could also have an adverse effect on our business, financial condition and results of operations.
If we lose the services of our key management, our business could suffer.
We depend to a significant extent on the continued service of our key executives, and our continued growth depends on our ability to identify, recruit and retain key management personnel. We are also dependent on our ability to
continue to attract, retain and motivate our personnel. We do not typically carry key person life insurance on our executive officers. If we lose the services of our key management or fail to identify, recruit and retain key personnel, our
business, financial condition or results of operations may be materially and adversely impacted.
We are dependent on our relationships with key suppliers to obtain a number of our products.
We depend on key suppliers to obtain a number of our products. Termination of our relationship with our key suppliers could adversely affect our business, financial condition and results of operations. Additionally, we may enter
into seasonal purchase agreements committing us to purchase fixed quantities of produce at fixed prices. We may suffer losses arising from the inability to sell these committed quantities and/or achieve the committed price. We also
provide grower loans and advances to suppliers with various levels of security, and we may suffer losses if these loans are not repaid. Any of these factors could materially and adversely affect our business, financial condition and results
of operations.
Failure to comply with applicable environmental laws and regulations can result in requirements to cease noncompliant operations, incurrence of additional capital or operating expenses to correct violations, or the assessment of
significant fines and penalties.
Compliance with environmental laws, including those related to the handling, use, generation, transport, and disposal of hazardous materials is inherent in major agricultural operations, including those conducted by us. Compliance
with these foreign and domestic laws and related regulations is an ongoing process, and these laws and regulations are frequently revised and generally become stricter over time. Failure to comply with applicable laws and regulations
can result in requirements to cease noncompliant operations, incurrence of additional capital or operating expenses to correct violations, or the assessment of significant fines and penalties. While we believe that we are generally in
material compliance with applicable laws and regulations, there can be no assurance that the cost of compliance with environmental laws and regulations will not, in the future, have a material effect on our capital expenditures, earnings
or competitive position. It is possible that future developments, such as increasingly strict environmental laws and enforcement policies thereunder, including those driven by concerns about climate change and further restrictions on the
use of agricultural chemicals, could result in increased compliance costs which may be material.
17
Table of Contents
We may be subject to liability and/or increased costs for environmental damage from the use of herbicides, pesticides and other potentially hazardous substances or environmental contamination of our current and previously owned
or leased property.
We use herbicides, pesticides and other potentially hazardous substances in the operation of our business. We may have to pay for the costs or damages associated with any improper application, accidental release or the use or
misuse of such substances. Our insurance may not be adequate to cover such costs or damages or may not continue to be available at a price or under terms that are satisfactory to us. In such cases, payment of such costs or damages could
have an adverse effect on our business, financial condition or results of operations.
Certain environmental laws, including the Comprehensive Environmental Response, Compensation and Liability Act in the U.S., impose strict and, in many cases, joint and several, liability for the cost of remediating
contamination, on current and former owners of property or on persons responsible for causing such contamination. Dole has been in the past involved in remedial investigations and actions at some locations, and we could in the future
be required to spend significant sums to remediate contamination that has been caused by us, our predecessors, or prior owners or operators of our properties. An adverse result in any potential future matter could have an adverse effect
on our business, financial condition and results of operations. See Note 19 “Contingencies” to the consolidated financial statements included herein for additional detail on the Company’s environmental-related contingencies.
Dole formerly used DBCP (1,2- dibromo-3-chloropropane), a nematicide that was used on a variety of crops throughout the world. The registration for DBCP with the U.S. government was cancelled, with limited exceptions, in
1979 based in part on an apparent link to male sterility among chemical factory workers who produced DBCP. There are a number of pending lawsuits in the U.S. and other countries against the manufacturers of DBCP and certain
growers, including Dole, who used DBCP in the past. The cost to defend or settle these lawsuits, and the costs to pay any judgments or settlements resulting from these lawsuits, or other lawsuits which might be brought, could have an
adverse effect on our business, financial condition or results of operations.
Overall tightening of the labor market, increases in labor costs or any possible labor unrest may adversely affect our business and results of operations.
Our business requires a substantial amount of labor. Any failure to retain stable and dedicated labor by us may disrupt our business operations. Although we have not experienced any material labor shortage to date, we have
observed an overall tightening and increasingly competitive labor market in some of the countries in which we operate. We compete with other companies in our industry and other labor-intensive industries for labor, and we may not be
able to offer competitive remuneration and benefits compared to them. If we are unable to manage and control our labor costs, our business, financial condition and results of operations may be affected.
Changes in immigration laws could impact the availability of labor to harvest our products and operate our salad manufacturing plants, or the availability of produce purchased from third party suppliers.
The personnel engaged in our harvesting operations may include significant numbers of immigrants who are authorized to work in the host county in which we operate. More specifically, immigrants who are authorized to work in
the U.S. also make up a portion of the workforce at our U.S. salad manufacturing plants. The availability and number of these workers could decrease if there are changes in immigration laws in the U.S. and other countries in which we
operate. A scarcity of available personnel to harvest agricultural products in these countries could increase our labor costs, increase our product costs or lead to product shortages, therefore adversely impacting our business, financial
condition and results of operations.
18
Table of Contents
Climate change laws could have an impact on our financial condition and results of operations.
Legislative and regulatory authorities in the U.S., the EU, Canada and other jurisdictions internationally will likely continue to consider numerous measures related to climate change and greenhouse gas emissions. In order to
produce, manufacture and distribute our products, we and our suppliers use fuels, electricity and various other inputs that result in the release of greenhouse gas emissions. Concerns about the environmental impacts of greenhouse gas
emissions and global climate change may result in environmental taxes, charges, regulatory schemes or assessments or penalties, which could restrict or negatively impact our operations, as well as those of our suppliers, who would
likely pass all or a portion of their costs along to us. We may not be able to pass any resulting cost increases along to our customers. Any enactment of laws or passage of regulations regarding greenhouse gas emissions or other climate
change laws by the U.S., the EU, Canada or any other international jurisdiction where we conduct business, such as the EU Emissions Trading System (“ETS”), could materially and adversely affect our business, financial condition and
results of operations.
Our operations and products are highly regulated in the areas of food safety and protection of human health and the environment.
Our operations are subject to a broad range of foreign, federal, state and local environmental, health and safety laws and regulations, including laws and regulations governing the use and disposal of pesticides and other chemicals,
all of which involve compliance costs. These regulations directly affect day-to-day operations and, to maintain compliance with all of the laws and regulations that apply to our operations, we have been and may be required in the future
to modify our operations, purchase new equipment or make capital improvements. Changes to our processes and procedures could require us to incur unanticipated costs and/or materially impact our business. Violations of these laws and
regulations can result in substantial fines, penalties or sanctions. In some circumstances, we may recall a product, voluntarily or otherwise, if we or the regulators believe it presents a potential risk. There can be no assurance that these
modifications and improvements and any fines, penalties and recalls would not have an adverse effect on our business, financial condition and results of operations. In addition, we have been and, in the future, may become subject to
lawsuits alleging that our operations and products caused personal injury or property damage.
As a producer and distributor of food products, we are subject to the laws and regulations in the jurisdictions where our facilities are located and where our products are distributed. In particular, in the U.S. we are subject to the
Federal Food, Drug and Cosmetic Act, as amended by the Food Safety Modernization Act (“FSMA”), which is enforced by the Food and Drug Administration (“FDA”). The FDA has the authority to regulate the growing, harvesting,
manufacturing, including composition and ingredients, processing, labeling, packaging import, distribution and marketing and safety of food in the U.S. The FSMA, enacted in January 2011, significantly enhances the FDA’s authority
over various aspects of food regulation. For example, the FSMA granted the FDA mandatory recall authority when the FDA determines there is a reasonable probability that a food is adulterated or misbranded and that the use of, or
exposure to, the food will cause serious adverse health consequences or death to humans or animals. The FDA has been active in implementing the requirements of the FSMA through issuance of regulations designed to result in a
reduction of the risk of contamination in food manufacturing and in beginning compliance enforcement of those regulations, such as the Foreign Supplier Verification program. The full impact of the FDA’s compliance protocols continues
to evolve, and we cannot assure you that it will not materially impact our business. Regulatory agencies in other jurisdictions have similar authority to address the risk of contamination or adulteration and to require that contaminated
products be removed from the market.
Within the EU, food safety policy is governed by the Farm to Fork Strategy which regulates food safety at all stages of the production and distribution process for all food products marketed within the EU, whether produced within
the EU or imported from third countries. This body of legislation forms a complex and integrated system of rules covering the entire food chain, from animal feed and health, through plant protection and food production, to processing,
storage, transport, import and export and retail sales. A framework regulation called the General Food Law Regulation (EC No. 178/2002) lays down the general principles and requirements of food law. European Member States are
required to implement European food safety law at a national level. National authorities and food agencies are responsible for enforcement and ensuring compliance within European Member States. National authorities may withdraw or
recall food from the market if it is considered to be injurious to health or unfit for human consumption. Where food presents a serious risk to human health, animal health or the environment, the European Commission can put in place
protective measures and suspend the placing on the market or use of products originating from the EU or suspend imports of products originating from non-EU countries.
The European Green Deal sets out to make Europe the first climate-neutral continent by 2050. The EU’s Farm to Fork Strategy is an integral part of the Green Deal and aims to address the challenges of sustainable food systems.
The shift to a sustainable food system could result in increased costs associated with compliance with new laws and regulations.
19
Table of Contents
The failure to comply with these laws and regulations in any jurisdiction, or to obtain required approvals, could result in fines, as well as a ban or temporary suspension on the production of our products or limit or bar their
distribution, and affect our development of new products, and thus could materially adversely affect our business and operating results. In addition, the U.S. Department of Agriculture (the “USDA”) regulates the import and export of
certain fruits and vegetables into and from the U.S., and the USDA also imposes growing, manufacturing and certification requirements for certain products labeled with organic claims. Similarly, the EU maintains a system of control,
certification and enforcement to guarantee that food which is marketed as organic complies with organic standards. Organic food imported into the EU is also subject to control procedures to guarantee that they have been produced and
shipped in accordance with organic principles. Failure to obtain necessary permits or otherwise comply with USDA and European regulations and requirements could result in a ban or temporary suspension of the import or export of our
products into or from the U.S., or our ability to grow, manufacture or market our products as organic, and thus could materially adversely affect our business. The Canadian Food Inspection Agency, and other Canadian governmental
departments, could enforce laws such as the Safe Food for Canadians Regulations in such a way as to cause significant disruption to our Canadian business, including for example, requirements relating to import licenses, traceability,
organic certification and food testing requirements.
We are subject to the FCPA and other anti-corruption laws or trade control laws, as well as other laws governing our operations. If we fail to comply with these laws, we could be subject to civil or criminal penalties, other remedial
measures, and legal expenses, which could adversely affect our business, financial condition and results of operations.
We are subject to anti-corruption laws, including the Foreign Corrupt Practices Act (“FCPA”), Irish anti-corruption laws, including the Criminal Justice (Corruption Offences) Act 2018, Proceeds of Crime Acts 1996 – 2016, the
Criminal Justice (Theft and Fraud Offences) Act 2001, U.K. Bribery Act 2010, and other anti-corruption laws that apply in countries where we do business. The FCPA, U.K. Bribery Act and these other laws generally prohibit us and
intermediaries from bribing, being bribed or making other prohibited payments to government officials or other persons to obtain or retain business or gain some other business advantage. We operate in a number of jurisdictions, some of
which may pose a high risk of potential FCPA violations, and we participate in joint ventures and relationships with third parties whose actions could potentially subject us to liability under the FCPA or local anti-corruption laws. In
addition, we cannot predict the nature, scope or effect of future regulatory requirements to which our international operations might be subject or the manner in which existing laws might be administered or interpreted.
We are subject to anti-trust laws such as EU competition law. Failure to comply with such regulations could adversely impact our reputation, business and results of operations. It could also result in material fines for the Company.
We are also subject to other laws and regulations governing our international operations, including regulations administered by the U.S. Department of Commerce’s Bureau of Industry and Security, the U.S. Department of
Treasury’s Office of Foreign Asset Control and various non-U.S. government entities, including applicable export control regulations, economic sanctions on countries and persons, customs requirements, currency exchange regulations
and transfer pricing regulations or collectively, “Trade Control laws.”
There is no assurance that we will be completely effective in ensuring our compliance with all applicable anticorruption laws, including the FCPA or other legal requirements, including Trade Control laws. If we are not in
compliance with the FCPA and other anti-corruption laws or Trade Control laws, we may be subject to criminal and civil penalties, disgorgement and other sanctions and remedial measures, and legal expenses, which could have an
adverse impact on our business, financial condition, results of operations and liquidity. Likewise, any investigation of any potential violations of the FCPA other anti-corruption laws or Trade Control laws by U.S. or foreign authorities
could also have an adverse impact on our reputation, business, financial condition and results of operations.
20
Table of Contents
Litigation and regulatory enforcement concerning marketing and labeling of food products could adversely affect our business and reputation.
The marketing and labeling of any food product in recent years has brought increased risk that consumers will bring class action lawsuits, and that the Federal Trade Commission (the “FTC”), and/or state attorneys general will
bring legal action concerning the truth and accuracy of the marketing and labeling of the product. Examples of causes of action that may be asserted in a consumer class action lawsuit include fraud, unfair trade practices and breach of
state consumer protection statutes, such as Proposition 65 in California. FTC and/or state attorneys general may bring legal action that seeks removal of a product from the marketplace and imposes fines and penalties. Even when not
merited, class claims, action by the FTC or state attorneys general enforcement actions can be expensive to defend and adversely affect our reputation with existing and potential customers and consumers and our corporate and brand
image, which could have a material and adverse effect on our business, financial condition or results of operations. The labeling of our products, and their distribution and marketing, is also subject to regulation by governmental
authorities in each jurisdiction where our products are marketed, such as, in the EU, under Council Regulation (EC) No 834/2007 on organic production and labeling of organic products, Directive (EU) 2019/2161 on consumer protection
rules, Regulation (EU) No 1169/2011 on the provision of food information to consumers and Regulation (EC) No 1924/2006 on nutrition and health claims made on foods. For example, the USDA requires compliance with certain
growing production and certification requirements as a condition to labeling foods with the word “organic” or with the USDA organic seal. A failure to comply with such labeling requirements could result in enforcement proceedings in
the relevant jurisdiction that could materially affect our marketing and distribution.
We are the subject of a number of legal proceedings, investigations and inquiries that could have an adverse effect on our reputation, business, financial condition and results of operations, and could result in additional claims.
We have been or are currently the subject of a number of legal proceedings and civil and criminal investigations and inquiries by governmental agencies, including matters related to DBCP use in the past, product safety and health,
product recalls, environmental property damage (such as proceedings related to a housing development in the City of Carson, California) and tax disputes. See Note 19 “Contingencies” to the consolidated financial statements included
herein for additional information regarding matters related to DBCP use and proceedings related to a housing development in the City of Carson, California. See also “Risk Factors —We face risks related to our former use of the pesticide
DBCP.” We are unable to predict how long such proceedings, investigations and inquiries will continue or the full scope of such investigations, but we anticipate that we will continue to incur significant costs in connection with these
matters and that these proceedings, investigations and inquiries will result in a substantial distraction of management’s time, regardless of the outcome. These proceedings, investigations and inquiries may result in damages, fines,
penalties, consent orders or other administrative action against us and/or certain of our officers, or in changes to our business practices, and any such fines or penalties could be greater than we currently anticipate. Furthermore, publicity
surrounding these proceedings, investigations and inquiries or any enforcement action as a result thereof, even if ultimately resolved favorably for us, could result in additional investigations and legal proceedings. As a result, these
proceedings, investigations and inquiries could have an adverse effect on our reputation, business, financial condition and results of operations.
Social media play an increasing role in brand and company image perception.
The inappropriate use of certain media could cause brand damage or information leakage. Negative posts or comments about us or our products on any social network, article, blog or website could seriously damage our reputation.
In addition, the disclosure of non-public, sensitive company information through external media channels could lead to information loss. Any business interruptions or damage to our reputation could negatively impact our business,
financial condition and results of operations.
21
Table of Contents
We are subject to risks relating to our handling of information, operation of our information systems, and the information systems of third parties.
We rely on information technology networks and systems to process, transmit, store, and manage data, and to manage and support a variety of critical business processes and operations. If we do not develop, manage, maintain and
secure our information technology systems appropriately, or do not effectively implement system upgrades, system migrations, or manage third-party service providers, our business or financial results could be adversely impacted. The
cyber threat landscape is growing increasingly complex and rapidly evolving, particularly in light of growing geopolitical tensions. Sophisticated cybersecurity threats present potential risk to the security of our information technology
networks and systems, as well as the confidentiality, availability, and integrity of the data processed, transmitted, and stored on those networks and systems. Cybersecurity incidents may result in unauthorized access to intellectual
property, trade secrets or confidential business information that are stored in electronic formats. We have in the past experienced, and may in the future face, cybersecurity incidents. In February of 2023, we were the victim of a
sophisticated ransomware incident involving unauthorized access to employee information. Upon detecting the incident, we promptly took steps to contain the incident, retained the services of leading third-party cybersecurity experts and
notified law enforcement. The February 2023 incident had a limited impact on our operations. See “Item 5. Operating and Financial Review Prospects” for further detail on the impact of the 2023 cybersecurity incident on the Company’s
operating results.
Our information technology networks and systems, some of which rely on third-party service providers, may experience operational impact, including to the confidentiality, integrity, and availability of our networks and systems,
and the information residing therein, due to various causes, including intentional hacking, security breaches, intrusions, malware, denial of service attacks, phishing, or other cybersecurity incidents, as well as natural disasters,
catastrophic events, power outages, or human error or malfeasance. If we are unable to prevent or adequately respond to and resolve these disruptions or failures, our operations may be impacted and any unauthorized access to, or
acquisition of, customer, employee, or other confidential information could result in adverse consequences such as reputational damage, premature termination or reduction of existing contracts, reduction of operating revenue,
remediation costs, ransomware payments, litigation or penalties under various laws and regulations. Our customers could also refuse to continue to do business with us and prematurely terminate or reduce existing contracts, resulting in a
significant reduction of our operating revenue. Additionally, if a third-party service provider on which we rely experiences a cybersecurity incident, we may not learn of such incident in a timely manner, or at all, which may inhibit our
ability to mitigate its impacts, and can exacerbate the risks described in this risk factor.
As cybersecurity incidents are becoming increasingly sophisticated and more frequent, our preventative measures and incident response efforts may not be entirely effective. We have invested in security safeguards to reduce the
risks to our networks, systems, and data, but there is no assurance that our efforts will prevent or timely detect cybersecurity incidents or disruptions. While we have procedures to assess and manage relationships with third-party service
providers, there is similarly no assurance that they will not be subject to a cybersecurity incident or disruption that has an impact on our networks, systems, or data. Future cybersecurity incidents or disruptions to us, or our third-party
service providers, could result in a material impact to our operations, systems, or financial results.
We are also subject to a dynamic landscape of laws and regulations governing the handling of information and the operation of information systems, including those relating to privacy, cybersecurity and data protection, in a range
of jurisdictions. Costs associated with compliance with these laws and regulations may increase over time and impact how we collect, handle and process information and operate our information systems, including in ways that may
impact the day-to-day operation of our business. Failure to comply with these obligations could result in investigations, litigation, fines, penalties, judgments or other proceedings which could have a material impact on our financial
results. See “Item 16K. Cybersecurity” for further detail on the Company’s policies and procedures on cybersecurity.
Technological innovation by our competitors could make our food products less competitive.
Our competitors include other fresh fruit and vegetable producers and major food ingredient and consumer-packaged food companies that also engage in the development and sale of food and food ingredients. Many of these
companies are engaged in the development of new plant varieties, food ingredients and other food products and frequently introduce new products into the market. Existing products or products under development by our competitors
could prove to be more effective, more resistant to disease or less costly than our products, which could have an adverse effect on the competitiveness of our products and adversely affect our business, financial condition and results of
operations.
22
Table of Contents
Our success depends in part on our ability to protect our intellectual property rights. We rely primarily on patent, copyright, trademark and trade secret laws to protect our proprietary technologies. Our policy is to protect our
technology by, among other things, filing patent applications for technology relating to the development of our business in the U.S., the EU and in selected foreign jurisdictions. Our trademarks and brand names are registered in
jurisdictions throughout the world. We intend to keep these filings current and seek protection for new trademarks to the extent consistent with business needs. We also rely on trade secrets and proprietary knowledge and confidentiality
agreements to protect certain of the technologies and processes that we use. The failure of any patents, trademarks, trade secrets or other intellectual property rights to provide protection to our technologies would make it easier for our
competitors to offer similar products, which could adversely affect our business, financial conditions and results of operations.
Optimizing our operations may be more difficult, costly or time-consuming than expected and the anticipated benefits and cost savings of the Merger may not be realized.
Historically, Total Produce and Legacy Dole operated independently. The future success of Dole plc, including the anticipated benefits and cost savings, depends, in part, on our ability to optimize our operations. The optimization
of our operations is a complex, costly and time-consuming process and if we experience difficulties in this process, the anticipated benefits may not be realized fully or at all, or may take longer to realize than expected, which could have
an adverse effect on us for an undetermined period. In addition, there is no guarantee that once such process has been completed, we will operate in a manner that is more efficient, organized, effective and competitive as a whole than
Legacy Dole and Total Produce operated as separate companies such that we will successfully realize the expected operating efficiencies, cost savings and other benefits currently anticipated.
We are also incurring costs related to the optimization of our operations, including facilities and systems consolidation costs and employment-related costs. We may also incur other costs, such as maintaining employee morale and
retaining key employees. We continue to assess the magnitude of these costs, and additional unanticipated costs may be incurred in the optimization of our operations.
The operational synergies realized as a result of the Merger may vary from expectations.
Although we do not anticipate materially changing the divisional structure of Total Produce and Legacy Dole and, as a result, do not expect material organizational synergies between these two businesses, we do anticipate
achieving material operational synergies as the divisions work together under one combined company, such as supply chain and production related synergies. We may, however, fail to realize these anticipated benefits or they may be less
significant than expected, which could adversely affect our business, financial condition or results of operations. The success of the Merger will depend, in significant part, on our ability to successfully manage the businesses of Total
Produce and Legacy Dole, grow the revenue of the combined company and realize the anticipated strategic benefits and expected operational synergies from the Merger referenced above. The work needed to realize these benefits could
take longer than anticipated and could result in the loss of key employees, the disruption of each company’s ongoing businesses, tax costs, inefficiencies or inconsistencies in standards, controls, information technology systems,
procedures and policies, any of which could adversely affect our ability to maintain relationships with customers, employees or other third parties or our ability to achieve the anticipated benefits of the Merger and could harm our
financial performance.
23
Table of Contents
The planned sale of our Fresh Vegetables division is subject to various risks and uncertainties and may not be completed in a timely manner on terms favorable to the Company, or at all.
On January 30, 2023, certain of our wholly owned subsidiaries entered into a Stock Purchase Agreement (the “Fresh Express Agreement”) with Fresh Express Acquisitions LLC (“Fresh Express”), a wholly owned subsidiary of
Chiquita Holdings Limited (“Chiquita”), pursuant to which Fresh Express agreed to acquire our Fresh Vegetables division for approximately $293.0 million in cash, subject to certain adjustments set forth in the Fresh Express Agreement.
On March 27, 2024, the parties to the Fresh Express Agreement agreed to terminate the Fresh Express agreement due to a failure to obtain regulatory approval. We remain committed, however, to exiting the Fresh Vegetables business
through an alternative process, which is currently underway (the “Vegetables exit process”). The completion of any transactions resulting from the Vegetables exit process may be subject to the satisfaction or waiver of certain customary
conditions, such as, among others, the expiration or termination of any applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, the absence of any governmental order prohibiting a transaction, and
further conditions not currently contemplated, and we may be unable to satisfy any such conditions in a timely manner or at all, and, if such conditions are not satisfied or waived, any such transaction may be delayed or may not be
completed at all.
The pendency of our decision to exit the Fresh Vegetables business may adversely affect our relationships with customers, operating results and business generally. If the Vegetables exit process is delayed or not completed for any
reason, investor confidence may decline, and we may face negative publicity and possible litigation.
Failure to complete the Vegetables exit process would adversely affect our plans to use proceeds from the disposal primarily for debt reduction as currently expected. In addition, we will have expended significant management
resources in an effort to exit the business and have incurred transaction costs. Failure to complete the Vegetables exit process could also result in significant management time and attention on the strategic future of the fresh vegetables
division and away from other divisions and overall company strategy.
24
Table of Contents
There can be no assurance that we will not be a passive foreign investment company for U.S. federal income tax purposes for any taxable year, which could subject U.S. investors in our Ordinary shares to significant adverse U.S.
income tax consequences.
A non-U.S. corporation, such as our company, will be classified as a passive foreign investment company (“PFIC”) for any taxable year if either (i) at least 75% of its gross income for such year consists of certain types of
“passive” income, or (ii) at least 50% of the value of its assets (generally determined on the basis of a quarterly average) during such year is attributable to assets that produce passive income or are held for the production of passive
income. Based on the current and anticipated value of our assets and composition of our income and assets, we do not presently expect to be a PFIC for the current taxable year or the foreseeable future.
However, while we do not expect to be or become a PFIC, no assurance can be given in this regard because the determination of whether we are or will become a PFIC for any taxable year is a fact-intensive determination made
annually that depends, in part, upon the composition and classification of our income and assets.
If we were to be or become a PFIC for any taxable year during which a U.S. Holder (as defined in “United States Federal Income Tax Considerations”) holds our Ordinary shares, certain adverse U.S. federal income tax
consequences could apply to such U.S. Holder.
U.S. investors may have difficulty enforcing judgments against us, our directors and executive officers.
We are incorporated under the laws of Ireland, and our registered offices and a substantial portion of our assets are located outside of the U.S. As a result, it may not be possible to effect service of process on such persons or us in
the U.S. or to enforce judgments obtained in courts in the U.S. against such persons or us based on civil liability provisions of the securities laws of the U.S.
There is no treaty between Ireland and the U.S. providing for the reciprocal enforcement of judgments obtained in the other jurisdiction, and Irish common law rules govern the process by which a U.S. judgment may be enforced in
Ireland. The following requirements must be met as a precondition before a U.S. judgment will be eligible for enforcement in Ireland:
• the judgment must be for a definite sum;
• the judgment must be final and conclusive, and the decree must be final and enforceable in the court which pronounces it;
• the judgment must be provided by a court of competent jurisdiction, and the procedural rules of the court giving the foreign judgment must have been observed;
• the U.S. court must have had jurisdiction in relation to the particular defendant according to Irish conflict of law rules; and
• jurisdiction must be obtained by the Irish courts over judgment debtors in enforcement proceedings by service in Ireland or outside Ireland in accordance with the applicable court rules in Ireland.
Even if the above requirements have been met, an Irish court may exercise its right to refuse to enforce the U.S. judgment if the Irish court is satisfied that the judgment (1) was obtained by fraud; (2) is in contravention of Irish
public policy; (3) is in breach of natural or constitutional justice; or (4) is irreconcilable with an earlier judgment. By way of example, a judgment of a U.S. court of liabilities predicated upon U.S. federal securities laws may not be
enforced by Irish courts on the grounds of public policy if that U.S. judgment includes an award of punitive damages. Further, an Irish court may stay proceedings if concurrent proceedings are being brought elsewhere.
25
Table of Contents
Our Articles of Association contain exclusive forum provisions for certain claims, which could limit our shareholders’ ability to obtain a favorable judicial forum for disputes with us or our directors, officers or employees.
Our Articles of Association provide that, unless we consent in writing to the selection of another forum, the federal district courts of the United States of America will, to the fullest extent permitted by law, be the exclusive forum
for resolving any complaint asserting a cause of action arising under the Securities Act (the “Federal Forum Provision”). Moreover, Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all claims
brought to enforce any duty or liability created by the Securities Act or the rules and regulations thereunder. Our decision to adopt the Federal Forum Provision followed a decision by the Supreme Court of the State of Delaware holding
that such provisions are facially valid under Delaware law. While there can be no assurance that federal or state courts will follow the holding of the Delaware Supreme Court or determine that the Federal Forum Provision should be
enforced in a particular case, application of the Federal Forum Provision means that suits brought by our shareholders to enforce any duty or liability created by the Securities Act must be brought in federal court and cannot be brought in
state court.
Section 27 of the Exchange Act creates exclusive federal jurisdiction over all claims brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder and our Articles of Association
confirm that the federal district courts of the United States of America will be the exclusive forum for resolving any complaint asserting a cause of action arising under the Exchange Act. Accordingly, actions by our shareholders to
enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder must be brought in federal court.
Any person or entity purchasing or otherwise acquiring or holding any interest in any of our securities shall be deemed to have notice of and consented to our exclusive forum provisions, including the Federal Forum Provision.
Additionally, our shareholders cannot waive compliance with the federal securities laws and the rules and regulations thereunder. These provisions may limit our shareholders’ ability to bring a claim in a judicial forum they find favorable
for disputes with us or our directors, officers or other employees, which may discourage lawsuits against us and our directors, officers and other employees and agents. Alternatively, if a court were to find the choice of forum provision
contained in our Articles of Association to be inapplicable or unenforceable in an action, we may incur additional costs associated with resolving such action in other jurisdictions, which may have an adverse effect on our business,
financial condition and results of operations.
We identified material weaknesses in our internal control over financial reporting in the year ended December 31, 2021, and we may identify additional material weaknesses in the future.
As of December 31, 2021, we identified two material weaknesses with respect to internal control over financial reporting. The first material weakness related to the design necessary for an effective information technology control
for certain divisions, which was remediated in 2022. The second material weakness identified in 2021 related to our internal control over the review of manual journal entries, which was not fully remediated as of December 31, 2022. A
material weakness is a deficiency, or combination of deficiencies, in internal controls over financial reporting, such that there is a reasonable possibility that a material misstatement of the consolidated financial statements will not be
prevented or detected on a timely basis.
During the year ended December 31, 2023, we implemented a remediation plan which involved (i) assessing the processes and controls over review of manual journal entries, (ii) automating where possible and practical the entry
posting processing and (iii) improving the segregation of duties in connection therewith. As a result of the steps taken by management, the material weakness over the manual review of journal entries was remediated. The remediation
procedures performed do not provide assurance that our remediation or other controls will continue to operate properly and that we will be able to maintain effective internal control over financial reporting. We also cannot provide
assurance that our internal control over financial reporting will be sufficient to avoid potential future material weaknesses. Furthermore, our current and future controls may become inadequate due to changes in conditions in our business,
information systems and key personnel.
If we are unable to successfully remediate any future material weaknesses in our internal control over financial reporting, the accuracy and timing of our financial reporting may be adversely affected; additionally, our reputation,
liquidity, access to capital markets and share price may also be negatively impacted.
See “Item 15. Controls and Procedures” for additional detail on the remediation of the control weakness.
26
Table of Contents
Certain provisions of Irish law and our Articles of Association could hinder, delay or prevent a change in control of Dole, which could adversely affect the price of our Ordinary shares.
Certain provisions of Irish law and our Articles of Association contain provisions that could make it more difficult for a third-party to acquire us without the consent of our Board of Directors.
Our Articles of Association include provisions permitting our Board of Directors to issue preferred shares from time to time in one or more series and to establish the terms, preferences and rights of any such series of preferred
shares, all without approval of our shareholders and allowing our Board of Directors to adopt a shareholder rights plan upon such terms and conditions as it deems expedient in the interests of the Company.
As an Irish public limited company, we are subject to provisions of Irish law, which may prevent or impede any attempt to acquire us, including provisions relating to mandatory bids, voluntary bids, requirements to make a cash
offer and minimum price requirements, as well as substantial acquisition rules and rules requiring the disclosure of interests in our shares in certain circumstances.
Our Articles of Association include provisions classifying our Board of Directors into three classes of directors with staggered three-year terms. A retiring director is eligible for reappointment at the annual general meeting at which
he or she retires. Our Articles of Association also permit the Board of Directors to fill any vacancies. These factors could have the effect of making the replacement of incumbent directors more time consuming and difficult.
These provisions may make it difficult and expensive for a third party to pursue a tender offer, change in control or takeover attempt that is opposed by our management or our Board of Directors. Public shareholders who might
desire to participate in these types of transactions may not have an opportunity to do so, even if the transaction is favorable to shareholders. These anti-takeover provisions could substantially impede the ability of public shareholders to
benefit from a change in control or change our management and Board of Directors and, as a result, may adversely affect the market price of our Ordinary shares and your ability to realize any potential change of control premium.
A transfer of our Ordinary shares, other than by means of the transfer of book-entry interests in the Depository Trust Company (“DTC”), may be subject to Irish stamp duty.
Transfers of our Ordinary shares effected by means of the transfer of book-entry interests in DTC will not be subject to Irish stamp duty. However, if you hold your Ordinary shares directly rather than beneficially through DTC or
your Ordinary shares are transferred other than by means of the transfer of book-entry interests in DTC, any transfer of your Ordinary shares could be subject to Irish stamp duty (currently at the rate of 1% of the higher of the price paid
or the market value of the shares acquired). In such circumstances, while the payment of Irish stamp duty is primarily a legal obligation of the transferee, when shares are purchased on the NYSE, the purchaser will require the stamp duty
to be borne by the transferor. The potential for stamp duty could adversely affect the price of your Ordinary shares which are held directly outside of DTC rather than beneficially through DTC or are transferred other than by means of the
transfer of book-entry interests in DTC.
In certain limited circumstances, dividends we pay may be subject to Irish dividend withholding tax.
In certain limited circumstances, Irish dividend withholding tax (currently at a rate of 25%) may arise in respect of any dividends paid on our Ordinary shares. A number of exemptions from Irish dividend withholding tax exist such
that shareholders resident in the U.S. and shareholders resident in certain countries may be entitled to exemptions from Irish dividend withholding tax.
U.S. resident shareholders that hold their Ordinary shares through DTC will not be subject to Irish dividend withholding tax provided the addresses of the beneficial owners of such Ordinary shares in the records of the brokers
holding such Ordinary shares are recorded as being in the U.S. (and such brokers have further transmitted the relevant information to a qualifying intermediary appointed by us). U.S. resident shareholders in the Company that hold their
Ordinary shares outside of DTC and shareholders resident in certain other countries (irrespective of whether they hold their Ordinary shares through DTC or outside DTC) will not be subject to Irish dividend withholding tax provided the
beneficial owners of such Ordinary shares have furnished completed and valid dividend withholding tax forms or an Internal Revenue Service (“IRS”) Form 6166, as appropriate, to our transfer agent or their brokers (and such brokers
have further transmitted the relevant information to our transfer agent). However, other shareholders may be subject to Irish dividend withholding tax, which could adversely affect the price of your Ordinary shares.
27
Table of Contents
Dividends received by Irish residents and certain other shareholders may be subject to Irish income tax.
Shareholders entitled to an exemption from Irish dividend withholding tax on dividends received from us will not be subject to Irish income tax in respect of those dividends, unless they have some connection with Ireland other
than their shareholding in us (for example, they are resident in Ireland). Shareholders who are not resident nor ordinarily resident in Ireland but who are not entitled to an exemption from Irish dividend withholding tax will generally have
no further liability to Irish income tax on those dividends which suffer Irish dividend withholding tax.
Ordinary shares received by means of a gift or inheritance could be subject to Irish capital acquisitions tax.
Irish capital acquisitions tax (“CAT”) could apply to a gift or inheritance of our Ordinary shares, irrespective of the place of residence, ordinary residence or domicile of the parties. This is because our Ordinary shares are regarded
as property situated in Ireland. The person who receives the gift or inheritance has primary liability for CAT.
Our legal and commercial name is Dole plc. We were incorporated in Ireland on June 16, 2017 as a dormant company under the name Pearmill Limited and changed our name to Dole Limited on April 13, 2021. On April 26, 2021,
we re-registered as a public limited company under the laws of Ireland and changed our name to Dole plc.
Our principal places of business are 29 North Anne Street, Dublin 7, D07PH36, Ireland (which is also our registered address) and 200 S. Tryon St., Suite #600, Charlotte, North Carolina 28202. Our telephone number is 353-1-887-
2600. The name and address of our agent in the U.S. is Corporation Service Company at 251 Little Falls Drive, Wilmington, Delaware 19808.
On February 16, 2021, Total Produce, Legacy Dole and the C&C Parties entered into a binding transaction agreement to combine Total Produce and Legacy Dole. Prior to the transaction, Total Produce had a 45.0% ownership
interest in Legacy Dole. On July 29, 2021, the Merger between Total Produce and Legacy Dole under Dole plc occurred in the following manner: (i) shares in Total Produce were exchanged for shares in Dole plc through a scheme of
arrangement at a fixed exchange ratio, and (ii) Legacy Dole merged with a subsidiary of Dole plc via a reverse triangular merger.
On July 30, 2021, we listed the Company’s Ordinary shares on the NYSE under the ticker “DOLE”.
On March 27, 2024, Dole and Fresh Express agreed to terminate the Fresh Express Agreement, and Dole announced that it is in the process of pursuing alternative transactions through which it will exit the Fresh Vegetables
business.
As a result of the decision to exit the business, the Fresh Vegetables division’s results are reported separately as discontinued operations, net of income taxes, in our consolidated financial statements included herein. Unless
otherwise noted, all other sections describe Dole in its entirety, which may include details on the Fresh Vegetables business, as applicable.
See Note 4 “Acquisitions and Divestitures” and Note 22 “Investments in Unconsolidated Affiliates” to our consolidated financial statements included herein for additional information on the acquisition of Legacy Dole, and other
acquisitions and divestitures. See “Item 5B. Operating and Financial Review and Prospects - Liquidity and Capital Resources” for information regarding historical capital expenditures and planned future capital expenditures.
For information on the SEC’s website and our website, please refer to “Item 10.H. Documents on Display.”
B. Business Overview
Our Company
Dole is a global leader in fresh fruits and vegetables, with a portfolio of over 300 products that are grown and sourced, both locally and globally, from over 30 countries in various regions worldwide. These products are distributed
and marketed in over 75 countries, across retail, wholesale and foodservice channels, under our business-to-business and business-to-consumer brands, the most notable being our iconic DOLE brand. Our most significant products hold
leading positions in their respective product categories and market territories, and we are one of the world’s largest producers and distributors of fresh bananas and pineapples.
28
Table of Contents
Our owned farming operations combined with a multi-continental sourcing model provides us with operating flexibility and product availability throughout the year. Within many territories in Europe, we operate a partnership
model with our grocery retail customers, offering holistic fresh produce management solutions and, in some cases, managing entire categories within their stores.
Our vertically-integrated business model is supported by a valuable and extensive infrastructure and asset base, including approximately 110,000 acres of farms and other land holdings around the world. In addition, we own a fleet
of refrigerated container carriers and pallet-friendly conventional refrigerated ships and have an extensive portfolio of various business facilities, including packing houses, manufacturing plants and cold storage and distribution facilities.
In addition to our owned asset base, we have developed long-standing relationships with independent growers across the globe, including international partnerships, joint ventures and other investments, which provide us additional
operational flexibility and extended range and availability. Refer to “Item 4D. Property, Plant & Equipment” for further discussion on our strategic assets.
We are an enthusiastic advocate of a healthy lifestyle and supporting consumers in making healthier choices by consuming more fruits and vegetables. We are committed to continuously improving farming and supply chain
practices and the way we operate our business to make a positive impact on society and the environment through our activities.
For our fiscal year ended December 31, 2023, accounting for the anticipated exit from the Fresh Vegetables division, which comprises substantially all of the assets and all of the liabilities of the former Fresh Vegetables reportable
segment, Dole has the following three segments – Fresh Fruit, Diversified Fresh Produce – Europe, the Middle East and Africa (“Diversified Fresh Produce – EMEA”) and Diversified Fresh Produce – Americas and the Rest of the World
(“Diversified Fresh Produce – Americas & ROW”). These segments are managed separately due to differences in geography, products, production processes, distribution channels and customer bases. We believe this organizational
structure allows us to continue serving our customers with the exceptional quality that they have come to associate with the brands we market and to drive growth and cost efficiencies through the realization of operational synergies
across the overall business.
Fresh Fruit. The Fresh Fruit reportable segment is a market-leading and vertically-integrated producer and distributor of multiple varieties of bananas and pineapples which are sourced from local growers or Dole-owned and
leased farms, predominately located in Latin America, and sold throughout North America, Europe, Latin America and Asia. This segment also operates a commercial cargo business, which offers available capacity to transport third party
cargo on company-owned vessels that are primarily used internally for transporting bananas and pineapples between Latin America, North America and Europe.
Diversified Fresh Produce – EMEA. The Diversified Fresh Produce – EMEA reportable segment includes Dole’s Irish, Dutch, Spanish, Portuguese, French, Italian, U.K., Swedish, Danish, South African, Czech, Slovakian, Polish
and Brazilian businesses, the majority of which sell a variety of imported and local fresh fruits and vegetables through retail, wholesale, e-commerce and, in some instances, food service channels across the European marketplace.
Diversified Fresh Produce – Americas & ROW. The Diversified Fresh Produce – Americas & ROW reportable segment includes Dole’s U.S., Canadian, Chilean, Peruvian, Mexican and Argentinian businesses, all of which market
globally and locally sourced fresh produce. These businesses can vary in nature from primary production to wholesale operations, retail-orientated marketers and specialist businesses dedicated to specific lines or categories. A shared
commitment to quality and a customer-centric approach to commercial relationships unite these businesses.
See Note 5 “Revenue” and Note 6 “Segments” to our consolidated financial statements included herein for additional revenue information related to our segments, our products and the geographic markets in which we compete.
Seasonality
The sales price of any fresh produce item varies throughout the year due to the supply of and demand for that particular product, as well as due to the pricing and availability of other fresh produce items, many of which are
seasonal in nature. Seasonality also varies in each of our external reportable segments.
29
Table of Contents
For example, in our Diversified Fresh Produce – Americas & ROW reportable segment, we typically see the strongest results from October to May, during the peak production and selling seasons for seasonal products sourced from
key growing regions, such as Chile and Peru. In our Diversified Fresh Produce – EMEA reportable segment, we typically see our strongest performance in the second and third quarters of the fiscal year due to our presence in key
European markets for locally-sourced products at this time and in production countries that are strongest in winter sourcing periods.
On the other hand, in Fresh Fruit, while production is continuous throughout the year, peak production typically occurs in the second half of the year and peak demand typically occurs in the first half of the year due to slightly
lower competition from seasonal fruits in our key sales markets.
Overall, due to the relative size of our external reportable segments, we typically experience the strongest performance in the second quarter, when Fresh Fruit and Diversified Fresh Produce – EMEA are at relative peaks and
before Diversified Fresh Produce – Americas & ROW slows down for its winter months. The fourth quarter is typically the quarter with the lowest operating income, due to the relative troughs in demand and activity experienced by the
Fresh Fruit and Diversified Fresh Produce – EMEA reportable segments.
We believe that the following strengths position us to develop and maintain the competitive advantages and leading positions that are critical to our continued success.
Established Global and Local Leadership in a Large and Structurally Growing Industry Category
We are one of the global leaders in bananas and pineapples and one of the largest global exporters of grapes. We plan to strengthen our position in berries and avocados by further developing the businesses and newer varieties of
these products through closer collaboration with growers, using production assets to connect consumers to the source, and by utilizing current infrastructure to achieve a more efficient route to market in the U.S. and Europe.
While the produce industry is competitive and comprises a large number of businesses, we believe that our size and scale allow us to create differentiation, maximize operational efficiencies and maintain a low-cost positioning that
is difficult to replicate.
Highly Diversified Product and Service Offering, Sourcing and Customer Base
Dole plc offers a diversified and well-balanced portfolio which we believe uniquely positions us for sustainable and profitable growth. We offer over 300 products to customers which include a variety of fruits, vegetables and other
produce-related items, health and consumer goods and logistics services, the most notable being our commercial cargo business.
Overall, we source products in over 30 countries in various regions; however, our approach varies significantly between reporting segments.
For our products that can be sourced from the same locations throughout the entirety of the year, we favor a vertically-integrated but diverse sourcing approach, combining significant investments in owned production in key
sourcing countries with complimentary grower relationships in those areas.
For our Fresh Fruit reportable segment, bananas, plantains and our other smaller product lines are sourced primarily from Latin and Central America, and pineapples are sourced primarily from Central America and Hawaii.
For our reporting segments that sell more products that are seasonal in nature, our sourcing approach is to combine a strong local presence in our markets and certain production regions with an ability to source globally to meet our
customers’ needs across all seasons.
Within our Diversified – EMEA and Diversified – Americas & ROW reportable segments, we operate businesses that are primarily markets based and businesses which are export led. For our markets-based businesses, produce is
sourced locally during relevant growing seasons, including at times from owned production, while during off seasons, we source on a global basis from a variety of northern and southern hemisphere locations. For example, throughout
the Company, berries are sourced from locations including the U.S., U.K., Mexico, Peru, Chile, Argentina, Spain, Netherlands, Belgium, Morocco, South Africa and Egypt.
30
Table of Contents
On the export side, our operations are more seasonal, where we combine owned production investments with grower relationships to develop a strong export offering to our third party customers. Examples include the important
cherry season in Chile, as well as more general seasons in the southern hemisphere, including the grape, apple, pear, kiwi, berry, citrus and avocado seasons. We also have some products within these businesses with year-round sourcing
from specific locations, including bananas in Spain and Portugal from the Canary Islands and potatoes and onions from North America.
Fresh produce supplies are affected by the geography of production, growing conditions, climate, seasonality and perishability. Adverse weather conditions, natural disasters and geopolitical conditions are some of the challenges to
operating in the produce industry. Although the regions listed above are the primary sourcing locations for certain of our products, by maintaining hundreds of grower relationships across North America, Europe, Latin America, Africa,
New Zealand and other geographies, we are not fully dependent upon any one geographic area or grower for our sourcing. Our diversified sourcing reduces risk from exposure to natural disasters and political disruptions, while allowing
access to the highest quality products throughout the year. In fiscal year 2023, no third-party grower represented more than 10% of the sourced volume for any significant product.
Our products are distributed and marketed in over 75 countries, across retail, wholesale, foodservice and e-commerce channels, including leading grocery stores and other retail chains, wholesalers, mass merchandisers,
supercenters, foodservice operators, club stores, convenience stores, distributors and smaller regional customers. Our diverse product offering allows us to reach a broad global consumer base that is increasingly demanding product
availability year round. Our customers are leading retail, wholesale and foodservice customers, primarily in North America, Latin America and Europe, none of which contributed more than 10% of total sales in fiscal year 2023. See Note
5 “Revenue” and Note 6 “Segments” to our consolidated financial statements included herein for additional revenue information related to our products and the geographic markets in which we compete.
We have maintained this diversity through forming new and developing existing relationships with a wide variety of growers, vendors and customers. In addition, our well-capitalized balance sheet positions us to benefit from
acquisitions and development opportunities within a fragmented industry. Dole plc has an extensive history of mergers and acquisitions in the fresh produce sector, which has allowed us to diversify our product offerings and customer
base, build highly specialized capabilities in the industry and expand geographically. Over the years, Total Produce and Dole have completed more than 100 acquisitions. These acquisitions are of varying sizes across four continents, from
transformational investments, such as the original investment in Legacy Dole and subsequent step-up acquisition, to smaller, bolt-on investments. These transactions were a significant driver of Dole’s growth, with revenue growing from
$2.0 billion in 2006 to $8.2 billion in 2023. Under our business strategy of growth through acquisitions, we continue to review, evaluate and consider opportunities to further expand our geographic coverage, customer diversity, product
offerings and value across the produce industry.
The DOLE brand is the most recognized and trusted brand in fresh fruit and vegetables in the U.S., as evidenced by our 92% consumer brand awareness, according to a survey conducted in 2023 by Ipsos. Additionally, 83% of
respondents in the same Ipsos survey declared that Dole has quality fruit, 84% of respondents identified DOLE as a likeable brand, 54% of respondents nominated DOLE as their favorite fruit brand, and 51% of respondents declared a
willingness to pay a little more for the DOLE brand.
Through our global marketing efforts, we believe we have made the distinctive red “DOLE” letters and sunburst a familiar symbol of freshness and quality, widely recognized by consumers around the world for providing healthy
food products. The DOLE brand supports our leading positions in the markets we serve. Going forward, Dole plc intends to build upon the recognition and trust that the DOLE brand has earned to broaden its footprint, extend its
categories and attract new customers.
31
Table of Contents
Strong Control Over Supply Chain from Differentiated, Vertically-Integrated Business Model
Dole plc is unique in its capacity to deliver the best of both worlds: the collective strength, resources and supply chain influence of a global leader with the service and market focus of a local operator. Our strategic asset base
across the globe, with total assets of approximately $4.6 billion in fiscal year 2023, gives us superior control over production, processing, warehousing and transportation. Fresh produce is generally perishable and must be brought to
market and sold soon after harvest, with selling prices dependent on many factors, including the availability and quality of the produce. Our control over the supply chain positions us to consistently and efficiently deliver high-quality
fresh fruits and vegetables to our consumers on a global scale.
Our quality starts on the farm. In our key bananas and pineapples categories, we source a substantial amount of our combined volumes from company-owned farms, and we produce some portion of our supply locally in each of the
other categories in which we operate. To complement our own produced volume, we have developed enduring relationships with hundreds of growers, investing in their businesses and providing agronomic, commercial and promotional
support. This combination of broad ownership of production assets across multiple regions and a diverse and large independent grower base provides us with the ability to manage costs and improve commercial opportunities, further
strengthening our low-cost positioning.
In addition to raw product sourcing, we source significant quantities of paper and packaging materials, agricultural chemicals and ingredients to support our own production. Prices of certain raw materials, as well as of raw
produce, can be volatile. However, we aim to manage our exposure to volatility by entering as much as possible into supply agreements that align with the duration of our marketing agreements. Overall, our supply chain and sourcing
capabilities give us the tools to deliver on service, quality and cost. It also allows us to serve our customers with both the end-to-end solution and the supply chain transparency for which they are increasingly asking. Refer to “Item 5.
Operating and Financial Review and Prospects” for further discussion on our sensitivity to the availability and price of certain raw materials.
Dole plc is at the Forefront of Environmental and Social Issues, Marketing a Portfolio of Healthy, Nutritious and Sustainable Produce
We are grateful to market and deliver highly nutritious products that bring health benefits to people across the world with a low environmental footprint as compared to most other food types, per the Barilla Center for Food and
Nutrition’s Double Pyramid. While our industry has a very special role to play in improving global health and well-being, we recognize that we have an equally essential responsibility for the people we employ, the local communities in
which we operate and the natural environment which allows us to produce and deliver fresh fruits and vegetables every day.
Over recent years, we have made important strides in the areas of sustainability and social responsibility. In 2022, we experienced a 12% reduction in overall Scope 1 and Scope 2 global emissions from 2020 and a 5% increase in
overall Scope 3 emissions from 2020. The Scope 1 decrease was a result of lower emissions from a more efficient shipping fleet and a reduction in refrigerant use, and the Scope 2 decrease was driven by higher usage of renewable
energy. The increase in Scope 3 emissions was primarily from increased business travel and logistics activity following the pandemic.
We have calculated our emissions targets in compliance with the Science Based Target initiative (“SBTi”). These targets have been submitted to SBTi for validation. In the near-term, Dole commits to reduce:
• Absolute Scope 1 and 2 Greenhouse Gas (“GHG”) emissions 44.0% by 2030 from a 2020 base year;
• Absolute Scope 3 GHG emissions 25.0% by 2030 from a 2020 base year. Scope 3 emissions cover purchased goods and services, upstream and downstream transport and fuel and energy-related emissions; and
• Absolute Forest, Land and Agriculture (“FLAG”) emissions 30.3% by 2030 from a 2020 base year.
• Absolute Scope 1, 2 and 3 GHG emissions 90.0% by 2050 from a 2020 base year; and
• Absolute FLAG emissions 72.0% by 2050 from a 2020 base year.
32
Table of Contents
We have also obtained certain certifications and recognition for our efforts in the area of sustainability. For example, we are a member of the Alliance for Water Stewardship with 20 of our banana operations certified by the
organization, with plans to expand this number by 50% by 2030. In addition, in 2022, we were awarded with an Origin Green Gold membership by the Irish Food Board for our annual performance on our sustainability targets and with
the Business Multidimensional Poverty Index award by the American-Costa Rican Chamber of Commerce for one of our social development initiatives in Costa Rica.
Looking forward, we plan to expand our existing initiatives and develop new ones, in order to grow, process and distribute our produce responsibly. We have publicly committed to specific sustainability goals for 2025 and 2030
that are focused on environmental, ethical, social and nutrition-related issues.
The food and agriculture industry is highly regulated. Regulatory authorities around the world administer numerous laws and regulations regarding the growing, harvesting, transportation, exporting, importing, processing,
packaging, marketing and selling of fruit and vegetables. Although the regulations related to our business are similar in most countries, the specific requirements, including risk tolerance, of the local authorities does vary from country to
country. Applicable regulations include those related to sanitation, pesticide use in source countries and residue standards in market countries, and packaging and labeling of marketed products. In the U.S., for example, an important
regulatory body related to our business is the Food and Drug Administration. For further information on material government regulations, See “Item 3D. Risk Factors—Our operations and products are highly regulated in the areas of
food safety and protection of human health and the environment.”, “Item 3D. Risk Factors—Litigation and regulatory enforcement concerning marketing and labeling of food products could adversely affect our business and reputation.”
and the overall “Regulatory and Legal Risks” section of “Item 3D. Risk Factors.”
C. Organizational structure.
Dole operates through various subsidiaries, joint ventures (“JV partners”), and affiliate companies around the world. The Company’s only significant subsidiary as of December 31, 2023 was as follows:
Principal Properties
We have a highly diverse footprint of tangible fixed assets around the world. We own and lease farms, warehouses, coolers, packhouses, processing facilities, port facilities and office space, primarily focused in the Americas,
Europe, Middle East and Africa, and vessels calling at ports primarily in the Americas and Europe. This diversification of assets includes the additional benefit of redundancies. For example, if a particular farm is unable to produce or a
particular facility is unable to process, we are able to adjust our supply chain to procure fruit or process product at different facilities within our network. While our assets are an important part of our business, no one asset in particular is
material when seen in the context of our entire portfolio. The following is a summary of our primary assets as of December 31, 2023 and includes assets related to the Fresh Vegetables division that will be disposed of in conjunction with
our plan to exit the business.
North America
Canada
We have four distribution facilities: two in Ontario, one in British Columbia and one in Alberta, consisting of offices, warehousing and cold storage, packing, ripening rooms and transportation brokerage services. We also have
additional regional sales and administrative offices in Ontario. All facilities are leased except for a 65,000 square foot (“sqft”) wholesale facility in Ontario owned by one of our JV partners.
33
Table of Contents
U.S.
We own approximately 6,626 acres of agricultural and production land across the U.S. Of our owned acreage, approximately 4,974 acres is in Oahu, Hawaii, where we produce pineapples, coffee and cacao. We utilize
approximately 85% of our total owned acreage in Hawaii, and the rest is actively marketed for sale.
We own four value-added salad plants, which sit on the majority of our owned acres dedicated to our Fresh Vegetables division. The four plants are located in Bessemer City, North Carolina; Yuma, Arizona; Soledad, California and
Springfield, Ohio (combined 1,082,000 sqft total). We also own three coolers (246,000 sqft total), some small farm acreages, greenhouses and office space dedicated to our Fresh Vegetables division in California. Our remaining owned
acres in the U.S. are dedicated to our avocado and berry operations.
We also lease approximately 8,686 acres of agricultural land, the majority of which (approximately 8,535 net acres) are dedicated to supporting our fresh-packed and value-added businesses. We also lease some small acreages in
California to support our berry businesses.
We have port terminal operations in California, Texas, Mississippi, Delaware and Florida, where we conduct our logistics and shipping operations. All operations are either leased or operated on the basis of throughput rates
agreements with terminal owners and operators.
We have five additional facilities in California dedicated to warehousing and cold storage, packing and transportation brokerage services (total 457,000 sqft). The three largest facilities are leased, while we own a facility in
Temecula, California and a small facility in Edison, California.
Our main office properties across the U.S. are all leased and consist of our North American corporate and North American fruit sales office in Charlotte, North Carolina and regional main offices in California and Pennsylvania for
our Fresh Vegetables and Diversified Fresh Produce – Americas & ROW businesses.
We have operations across South and Central America. We own approximately 51,679 acres in Costa Rica, primarily used for banana and pineapple production, 35,227 acres in Honduras, primarily used for banana and pineapple
production, approximately 8,752 acres in Ecuador, primarily used for banana production, and approximately 4,204 acres in Guatemala with a JV partner used for banana production. We also lease a combined 4,780 acres through wholly-
owned subsidiaries and JV partners in Central America, again used for banana and pineapple production. We operate a large number of supporting packhouses and cold storage facilities throughout the region to support our tropical fruit
businesses.
Our vessels operate out of terminals in Costa Rica, Ecuador, Honduras, Guatemala and Colombia. In Ecuador, we own and operate a port, while in the other locations, we operate under a combination of leases and throughput rates
with port operators and owners.
In Chile, we own approximately 2,760 acres and lease a further 3,700 acres of land dedicated to diversified produce production; in Peru, we own approximately 329 acres and lease approximately 250 acres of land used for
diversified produce production; in Brazil, we lease 735 acres of land used for mango and grape production; and in Mexico, we lease 261 acres of land in connection with our berry operations.
We also operate fourteen pack houses in Chile, nine of which have cold storage facilities, one packhouse in Argentina with a cold storage facility, two packhouses in Peru, one of which is through a JV partner and two packhouses
and one warehouse in Brazil to assist our operations. Our largest facility in Chile (approximately 520,000 sqft) is located in San Fernando and is primarily used for apples and pears.
Europe - Eurozone
Ireland
We have facilities across the Republic of Ireland, including our corporate head office in Dublin and other facilities, including greenhouses, warehousing and ancillary offices spread across the country. Our main operating facility is
the combination of two leased buildings, totaling approximately 115,000 sqft of space, and encompasses warehouses, a packhouse and offices in Swords, Co. Dublin.
34
Table of Contents
We have 27 facilities in Spain and two in Portugal totaling almost 800,000 sqft of office, warehousing, ripening and wholesale market space. The main operations in these countries are in Madrid (approximately 118,000 sqft),
Barcelona (approximately 85,000 sqft) and Alicante (approximately 47,000 sqft), where the Spanish head office is located. Three of the facilities are owned, and all remaining facilities are leased.
The Netherlands
We operate out of a number of facilities across the Netherlands, with large warehousing and office spaces in Bleiswijk, Poeldijk and Venlo, and smaller office and warehousing spaces in Zeewolde and Dronten. We also operate a
packing and cold storage facility with offices for berries in Helenaveen. The facilities in Poeldijk are owned and all other facilities are leased.
Other Eurozone
In France, we operate three facilities that consist of administration offices and ripening and distribution facilities. We operate additional ripening facilities in Stelle, Germany and Calcio and Guidonia, Italy, the largest of which is
Calcio at approximately 81,000 sqft. We also have sales and administration offices across the Eurozone, including in Calcio, Italy; Athens, Greece and Hamburg, Germany, and operate out of a small port terminal office in Antwerp,
Belgium in support of our shipping operation.
Non-Eurozone
Sweden
We primarily operate from owned offices and warehouses in Helsingborg, which include automated packing and sorting facilities and ripening rooms (approximately 254,000 sqft). We operate other smaller facilities across Sweden
in our produce business, including production and processing plants and other ripening rooms, warehousing and office space, while for our third party logistics business, we operate a number of leased warehouses that are subleased to
customers.
Denmark
The main Danish facility is an owned facility located in Køge (approximately 143,000 sqft) and consists of a warehouse, picking and packing area, office space and avocado and mango ripening facilities. There is a second owned
facility in Aarhus that is approximately 50,000 sqft and used for banana ripening and cross docking.
U.K.
Across the UK we operate from 27 locations covering offices, warehousing, and packing facilities with a mixture of owned and leased facilities. The largest facilities are in Spalding (60,000 sqft owned packing and warehouse
facility) and Bristol (56,000 sqft of warehouse facilities part owned and part leased within a wholesale marketplace where we are a significant shareholder.)
Czech Republic
The headquarters for our Czech operations are based in Brno (215,000 sqft owned facility), which includes office space, warehouses, banana ripening rooms, cold storage and logistics. There are five other locations which include
warehouses and leased and owned farmland, primarily used for vegetables (840 acres). Our Czech operating company also has a 120,000 sqft leased facility in Bratislava in Slovakia that is used for general wholesaling.
Rest of World
We have facilities spread across the rest of the world, with some locations owned directly and others owned through our JV partners and equity method investments. This includes 825 acres of owned and 1,650 acres of leased
vineyards and orchards, as well as a 120,000 sqft warehouse in South Africa, and certain sales offices in Dubai, Australia and Hong Kong.
35
Table of Contents
We also own a fleet of seven self-sustained refrigerated container carriers and four pallet-friendly conventional refrigerated ships with container-carrying capacity on deck. We operate all of the vessels ourselves and additionally
operate three chartered vessels. The seven container vessels and two of the chartered vessels operate on four services from Central and South America to the eastern coast of the U.S. (two services), U.S. gulf region and U.S. west coast,
while the four owned, pallet-friendly vessels and one charter operate a single service between Central and South America, Puerto Rico and Belgium. We also lease or own a fleet of 20,550 reefer containers, 1,127 dry containers,
approximately 5,685 chassis and 4,686 gensets that support our shipping operations.
None.
The following discussion and analysis of our financial condition and results of operations included herein may contain forward-looking statements that relate to our plans, objectives, estimates and goals and involve risks and
uncertainties. Our actual results could differ materially from the forward-looking statements included herein. Statements regarding our future and projections relating to products, sales, revenues, expenditures, costs and earnings are
typical of such statements. Factors that could cause or contribute to such differences include, but are not limited to, those discussed in “Item 3D. Risk Factors”.
Executive Overview
We are a global leader in fresh fruits and vegetables, with produce sourced, both locally and globally, from over 30 countries in various regions and distributed and marketed in over 75 countries, across retail, wholesale and food
service channels. Our most significant products hold leading market share positions in their respective categories and territories. We are one of the world’s largest producers of fresh bananas and pineapples, one of the largest global
exporters of grapes and have a strong presence in growing categories such as berries, avocados and organic produce. We sell and distribute fruit and vegetable products throughout an extensive network in North America, Europe, Latin
America, Asia, the Middle East and Africa (primarily in South Africa). For further information on our principal sources of revenue, refer to Note 5 “Revenue” to the consolidated financial statements included herein. In addition, see “Item
4. Information on the Company” for a more detailed description of our products and services offered.
Fresh Fruit: The Fresh Fruit reportable segment primarily sells bananas and pineapples which are sourced from local growers or Dole-owned and leased farms, predominately located in Latin America, and sold throughout North
America, Europe, Latin America and Asia. This segment also operates a commercial cargo business, which offers available capacity to transport third party cargo on company-owned vessels that are primarily used internally for
transporting bananas and pineapples between Latin America, North America and Europe.
Diversified Fresh Produce – EMEA: The Diversified Fresh Produce – EMEA reportable segment includes Dole’s Irish, Dutch, Spanish, Portuguese, French, Italian, U.K., Swedish, Danish, South African, Czech, Slovakian, Polish
and Brazilian businesses, the majority of which sell a variety of imported and local fresh fruits and vegetables through retail, wholesale and, in some instances, food service channels across the European marketplace.
Diversified Fresh Produce – Americas & ROW: The Diversified Fresh Produce – Americas & ROW reportable segment includes Dole’s U.S., Canadian, Chilean, Peruvian, Mexican, Argentinian and Indian businesses, all of which
market globally and locally-sourced fresh produce from third-party growers or Dole-owned farms through retail, wholesale and food service channels globally.
On March 27, 2024, certain of our wholly owned subsidiaries terminated the Fresh Express Agreement, pursuant to which Fresh Express had agreed to acquire our Fresh Vegetables division, due to the failure to obtain regulatory
approval.
36
Table of Contents
We are currently engaged in the Vegetables exit process pursuant to which we will exit the Fresh Vegetables business. We are committed to exiting the business and have therefore determined that the Fresh Vegetables division
continues to meet the criteria to be classified as held for sale and that the Vegetables exit process represents a strategic shift that will have a material effect on the Company’s operations and results. The results of operations of the Fresh
Vegetables division have been reported separately as discontinued operations, net of income taxes, within our operating results below.
The Vegetables exit process, if and when completed, will have certain material direct and indirect impacts to our future operating results, statement of financial position and cash flows, the extent of which cannot be reliably
estimated at this time.
Since early 2021, we have experienced inflationary pressures across our business. In 2023, these pressures continued to impact our operations but have moderated as the rate of inflation has slowed from the peaks seen in 2022.
However, the economic and market environment remains volatile, and a number of external factors continue to pose important risks to the global economy and to our business today, including:
In response to the various ongoing challenges noted above, we are continuing to work across our business on mitigation strategies, including implementing price increases and identifying operational efficiencies. Although we
ultimately believe that we are well positioned within our industry to weather periods of economic disruption, the scope, duration and carryover effects of the above factors are uncertain, rapidly changing and difficult to predict. Therefore,
the extent and magnitude of the impact of these factors on our business, operating results and long-term liquidity position cannot be reliably estimated at this time.
We are continuing to monitor the direct and indirect effects of the ongoing war between Russia and Ukraine and other geopolitical conflicts on both the global economy and our business and operations. The broader consequences
of the Russia and Ukraine war and other geopolitical conflicts have given rise to certain challenges for our business, but any resulting impacts have not been and are not expected to be material to Dole’s overall results.
See “Item 3D. Risk Factors” herein for more information on ongoing risks, such as those related to currency exchange fluctuations, increases in product costs, global capital and credit markets and the uncertainty of wars and other
global conflicts.
Cyber Incident
In February 2023, we were the victim of a sophisticated ransomware incident impacting approximately half of Legacy Dole’s servers and one quarter of its end-user computers. The incident also resulted in unauthorized access to
certain Dole information, including information about certain employees, though we have no reason to believe any employee information was publicly released. Upon detecting the incident, the Company promptly took steps to
investigate and contain the incident, retaining the services of leading third-party cybersecurity experts and working with law enforcement. We experienced minimal operational impact from the incident, and all impacted servers and end-
user computers have been restored or rebuilt. The total financial impact to the Company, including discontinued operations, was $11.0 million for the year ended December 31, 2023. See “Item 16K. Cybersecurity” for further detail on
the Company’s policies and procedures on cybersecurity.
Our business is heavily dependent on raw materials and other inputs, such as fuel, containerboard, fertilizers, plastic resins and other commodities, used in the growing, packaging, manufacturing and distribution of products.
Changes in the costs of raw materials and other inputs have historically impacted and are expected to continue impacting company profitability. Increases in commodity costs have historically driven, and may in the future drive, price
increases for our portfolio of products to mitigate the impact of such increased costs.
37
Table of Contents
Shipping and inland logistics are of significant importance to our business, and as a result, their cost and availability are critical variables that impact sales volumes and operating margins. We manage our exposure to this variability
on the shipping side by owning and operating our own vessels. Our vessels support a large portion of volume in the Fresh Fruit reportable segment and also provide additional insulation via our commercial cargo business, which typically
performs strongest when the demand for and cost of shipping is at its highest. However, both within the Fresh Fruit segment and in other reportable segments, we also rely on third party shipping and logistics services. Disruptions or
supply and demand imbalances in inland logistics, ocean freight or at ports and other terminals can therefore have a material impact on our operations if Dole cannot adjust pricing when markets change, secure a consistent supply of
logistics services or offset additional costs with additional profit in its commercial cargo business.
For more information, see “Item 3D. Risk Factors—Global Economic and Market Risks”.
A. Operating Results.
Selected results of operations for the years ended December 31, 2023 and December 31, 2022 were as follows:
The following provides an analysis of consolidated operating results in comparison to the prior year. Management has analyzed the significant drivers of consolidated operating results below and provided further commentary on
segment performance in the section to follow. All other operating results not included in the analysis were not significant to the Company’s overall performance. Unless otherwise noted, the changes discussed below are for the year ended
December 31, 2023, as compared to the year ended December 31, 2022.
For an analysis of changes in operating and segment results for the year ended December 31, 2022, as compared to the year ended December 31, 2021, please see Dole’s annual report on Form 20-F for the year ended December 31,
2022, filed on March 22, 2023 by Dole plc (File No. 001-40695).
38
Table of Contents
Revenue, Net
The increase in total revenue, net (2.8%, or $220.9 million), was primarily due to increases in revenue in the Diversified Fresh Produce – EMEA and Fresh Fruit reportable segments, primarily as a result of inflation-justified price
increases, an incremental net positive impact from acquisitions and divestitures of $35.8 million and a favorable impact from foreign currency translation of $26.7 million, mainly driven by the strengthening of the euro and British pound
sterling against the U.S. dollar. These positive impacts were partially offset by a weaker performance in the Diversified Fresh Produce – Americas & ROW reportable segment.
Cost of Sales
The increase in total cost of sales (1.7%, or $126.6 million) was primarily due to increased revenue performance as discussed above, inflationary pressures on sourcing, materials and handling costs and an unfavorable impact from
acquisitions and divestitures and foreign currency translation, partially offset by incremental depreciation on pineapple bearer plants recognized in the prior year in connection with the Merger.
The increase in total SMG&A (8.6%, or $37.7 million) was primarily due to increases in employee wages and salaries and higher professional and consulting fees, which included nonrecurring costs of $5.3 million related to the
cyber incident in February 2023. The increase was also related to an unfavorable impact from acquisitions and divestitures.
The gain on asset sales in the current year was $54.1 million and was primarily a result of the sale of actively marketed land in Hawaii in the Fresh Fruit reportable segment. Other notable gains were a result of the sale of vessels
and a property in Latin America, all within the Fresh Fruit reportable segment, the sale of other properties within the Diversified Fresh Produce – Americas & ROW reportable segment and the sale of certain assets that are excluded from
the Vegetables exit process. See Note 11 “Assets Held-for-Sale and Actively Marketed Property” to the consolidated financial statements included herein for additional detail. The gain on asset sales in the prior year was primarily from
the sale of two buildings in Europe and actively marketed land in Hawaii.
The decrease in other income, net (54.7%, or $5.8 million), was primarily due to unrealized net losses on foreign denominated borrowings and net periodic costs from non-service components of pension and other postretirement
benefit plans in the current year, partially offset by gains on investments and increases in other activity.
See Note 7 “Other Income, Net” to the consolidated financial statements included herein for additional detail on the components of other income, net.
Interest Expense
The increase in interest expense (43.9%, or $24.7 million) was due to higher interest rates and higher fees on trade receivables sales arrangements in the current year.
Income Taxes
The Company recorded income tax expense of $43.6 million on $205.9 million of income from continuing operations before income taxes and equity earnings in the current year, reflecting a 21.2% effective tax rate, and an income
tax benefit of $25.6 million on $135.9 million of income from continuing operations before income taxes and equity earnings in the prior year, reflecting an (18.8)% effective tax rate.
39
Table of Contents
Dole’s effective tax rate varies significantly from period to period due to the level, mix and seasonality of earnings generated in Ireland and its various foreign jurisdictions, including the U.S. In the current year, the Company’s
income tax expense differed from the Irish statutory rate of 12.5% primarily due to U.S. global intangible low-taxed income (“GILTI”) provisions of the 2017 Tax Cuts and Jobs Act (“Tax Act”), U.S. Subpart F income inclusion, a
decrease in liabilities for uncertain tax positions related to the taxation of foreign income as a result of the lapse of the statute of limitations and operations in foreign jurisdictions that are taxed at different rates than the Irish statutory tax
rate. In the prior year, the Company’s income tax expense differed from the Irish statutory rate of 12.5% primarily due to the GILTI provisions of the Tax Act, U.S. Subpart F income inclusion, a decrease in liabilities for uncertain tax
positions and operations in foreign jurisdictions that are taxed at different rates than the Irish statutory tax rate.
The Company’s net deferred tax liability is primarily related to acquired intangible assets and fair value adjustments resulting from the Merger and is net of deferred tax assets related to the U.S. federal interest disallowance
carryforward, U.S. state and non-U.S. net operating loss carryforwards and other temporary differences. Dole maintains a valuation allowance against certain U.S. state and non-U.S. deferred tax assets. Each reporting period, the
Company evaluates the need for a valuation allowance on deferred tax assets by jurisdiction and adjusts estimates as more information becomes available.
All post-1986 previously unremitted earnings for which no U.S. deferred tax liability had been accrued have been subject to U.S. tax. Dole plc is an Irish-based parent company and intends to continue to invest most or all of its
foreign earnings, as well as capital, in its foreign subsidiaries, indefinitely outside of Ireland and does not expect to incur any significant additional taxes related to such amounts. Also, from time to time, Dole may choose to repatriate
anticipated future earnings of which some portion may be subject to tax and increase Dole’s overall tax expense for that fiscal year. The Company continues to evaluate its cash needs and may update its assertion in future periods.
During the year ended December 31, 2022, the tax authorities in one of Dole’s foreign jurisdictions issued an income tax assessment related to transfer pricing of approximately $30.0 million (including interest and penalties) for
the 2017 tax year. The Company’s subsidiary appealed the assessment, and on March 9, 2023, the reviewing body annulled the assessment. The tax authority has begun a new audit, which the Company’s subsidiary has challenged based
on the expiration of the statute of limitations. Based on the new audit, an assessment was issued in October 2023 of approximately $20.0 million (including interest and penalties) for the 2017 tax year. The Company continues to protest
the reopening of the audit for 2017 on the grounds that the statute of limitations has expired, and the Company has also appealed the most recent assessment with the taxing authorities. On December 20, 2023, the Tax Administration
issued a resolution to the filed appeal in which the tax authority confirmed its assessments against the Company. In response, the Company filed an appeal on February 15, 2024. The Company believes that, based on an analysis of the
facts and circumstances, applicable local law, tax regulations and case law, it is more likely than not that we will prevail. While the Company believes the likelihood of paying the assessment is remote, the timing of resolution remains
uncertain.
On December 18, 2023, the President of Ireland signed the Finance (No. 2) Bill 2023 which included legislation regarding the implementation of Pillar Two (with an effective date of January 1, 2024). The legislation enacts a
domestic and multinational top-up tax to implement the Domestic Minimum Top-up Tax and Income Inclusion Rule, two of the Organization for Economic Co-operation and Development Global Anti-Base Erosion Model Rules (Pillar
Two). Pillar Two aims to ensure that multinationals pay a minimum effective corporate tax of 15% in each jurisdiction in which they operate. The legislation did not impact Dole’s 2023 annual effective tax rate, and we are currently
evaluating the impact on our 2024 annual effective tax rate.
On December 27, 2023, the government of Bermuda passed legislation enacting a 15% corporate tax regime that will become effective for tax years beginning on or after January 1, 2025. The new legislation is intended to align
with the Organization for Economic Co-operation and Development Global Anti-Base Erosion Model Rules (Pillar Two). The legislation will not impact Dole’s 2023 annual effective tax rate, and we are currently evaluating future
impacts.
See Note 9 “Income Taxes” to the consolidated financial statements included herein for additional information on income taxes.
The increase in equity method earnings was primarily due to improved performance across the Company’s joint ventures in Europe and Latin America and from the disposal of a joint venture in the prior year that was operating at a
loss.
See Note 22 “Investments in Unconsolidated Affiliates” to the consolidated financial statements included herein for additional information on equity method investments.
40
Table of Contents
Dole has the following segments: Fresh Fruit, Diversified Fresh Produce EMEA and Diversified Fresh Produce – Americas & ROW. The Company’s reportable segments are based on (i) financial information reviewed by the Chief
Operating Decision Maker (“CODM”), (ii) internal management and related reporting structures and (iii) the basis upon which the CODM assesses performance and allocates resources.
Segment performance is evaluated based on a variety of factors, of which revenue and adjusted earnings before interest expense, income taxes and depreciation and amortization (“Adjusted EBITDA”) are the financial measures
regularly reviewed by the CODM.
Dole and its chief operating decision makers, Dole’s CEO and COO, use Adjusted EBITDA as the primary financial measure, because it is a measure commonly used by financial analysts in evaluating the performance of
companies in the same industry. The adjustments in calculating Adjusted EBITDA have been made, because management excludes these amounts when evaluating performance on the basis that such adjustments eliminate the effects of (i)
considerable amounts of non-cash depreciation and amortization and (ii) items not within the control of the Company’s operations managers. Adjusted EBITDA is not calculated or presented in accordance with U.S. GAAP, but Adjusted
EBITDA by segment is presented in conformity with Accounting Standards Codification (“ASC”) 280, Segments. Further, Adjusted EBITDA as used herein is not necessarily comparable to similarly titled measures of other companies.
Adjusted EBITDA is not a substitute for net income attributable to Dole plc, net income, cash flows from operating activities or any other measure prescribed by U.S. GAAP.
Adjusted EBITDA is reconciled below to net income by (1) subtracting the loss from discontinued operations, net of income taxes; (2) subtracting the income tax expense or adding the income tax benefit; (3) subtracting interest
expense; (4) subtracting depreciation charges; (5) subtracting amortization charges on intangible assets; (6) subtracting mark to market losses or adding mark to market gains related to unrealized impacts from derivative instruments and
foreign currency denominated borrowings, realized impacts on noncash settled foreign currency denominated borrowings, net foreign currency impacts on liquidated entities and fair value movements on contingent consideration; (7)
other items which are separately stated based on materiality, which, during the years ended December 31, 2023 and December 31, 2022, included adding or subtracting asset write-downs from extraordinary events, net of insurance
proceeds, adding the gain or subtracting the loss on the disposal of business interests, subtracting the incremental costs from the fair value uplift for biological assets related to the acquisition of Legacy Dole, adding the gain or subtracting
the loss on the sale of investments accounted for under the equity method, adding the gain or subtracting the loss on asset sales for assets held for sale and actively marketed property, subtracting restructuring charges and costs for legal
matters not in the ordinary course of business, subtracting charges for impairment of property, plant and equipment and subtracting costs incurred for the cyber-related incident; and (8) the Company’s share of these items from equity
method investments.
41
Table of Contents
The following provides revenue by segment and a reconciliation of Adjusted EBITDA by segment to consolidated net income, which is the most directly comparable U.S. GAAP financial measure:
Year Ended
December 31, December 31,
2023 2022
Adjusted EBITDA is not a substitute for net income attributable to Dole plc, net income, net cash provided by operating activities or any other measure prescribed by U.S. GAAP.
42
Table of Contents
The following table illustrates the estimated impact of factors that have driven changes in segment revenues for the year ended December 31, 2023, as compared to the year ended December 31, 2022:
1
The impact of foreign exchange translation represents an estimate of the effect of translating the results of operations denominated in a foreign currency to U.S. dollar at prior year average rates, as compared to the current year average rates.
2
While we acknowledge that the Fresh Fruit segment is impacted by foreign exchange translation, the impact is not easily determinable, as the prices for Fresh Fruit products in European markets are typically heavily impacted by the exchange rates between European currencies and the U.S.
dollar at the time contracts are set with customers (and for spot fruit at the time fruit is sold). This is due to the majority of Fresh Fruit products being sourced using U.S. dollar terms.
3
Operational change represents the remaining change in revenue after isolating the impacts of foreign exchange translation and acquisitions and divestitures, which we believe are significant factors that impact the comparability of our operating results in comparison to the prior year. The
operational change is discussed in greater detail below.
The following table illustrates the estimated impact of factors that have driven changes in segment Adjusted EBITDA for the year ended December 31, 2023, as compared to the year ended December 31, 2022:
1
The impact of foreign exchange translation represents an estimate of the effect of translating the results of operations denominated in a foreign currency to U.S. dollar at prior year average rates, as compared to the current year average rates.
2
Operational change represents the remaining change in Adjusted EBITDA after isolating the impacts of foreign exchange translation and acquisitions and divestitures, which we believe are significant factors that impact the comparability of our operating results in comparison to the prior year.
The operational change is discussed in greater detail below.
Changes in segment revenue and segment Adjusted EBITDA are described in more detail below, with focus on operational changes which we believe are more reflective of the Company’s performance in comparison to the prior
year. Unless otherwise noted, the changes discussed below are for the year ended December 31, 2023, as compared to the year ended December 31, 2022.
Fresh Fruit
The increase in Fresh Fruit revenue, net (2.9%, or $88.7 million), to $3.1 billion was primarily due to higher worldwide pricing of bananas and pineapples and an increase in worldwide volumes of bananas sold, partially offset by
lower worldwide volumes of pineapples sold.
The increase in Fresh Fruit Adjusted EBITDA (1.6%, or $3.4 million) to $208.9 million was primarily due to strong revenue performance, partially offset by higher fruit sourcing costs, an increase in materials and handling costs
and lower profit from the commercial cargo business.
43
Table of Contents
The increase in Diversified Fresh Produce – EMEA revenue, net (8.9%, or $280.4 million), to $3.4 billion was primarily due to inflation-justified price increases across the segment, a net positive impact from acquisitions and
divestitures of $35.8 million, driven by acquisitions in Spain, and a positive impact from foreign currency translation of $33.2 million, as a result of the strengthening of the euro and British pound sterling against the U.S. dollar.
Excluding the impact of foreign currency translation and acquisition and divestitures, revenue was 6.7%, or $211.4 million, ahead of the prior year.
The increase in Diversified Fresh Produce – EMEA Adjusted EBITDA (20.3%, or $22.5 million) to $133.6 million was primarily due to strong performance across the segment in comparison to the prior year, particularly within the
Spanish, Dutch, Czech and South African businesses, as well as a net favorable impact from acquisitions and divestitures of $1.8 million. Excluding the impact of foreign currency translation and acquisition and divestitures, Adjusted
EBITDA was 17.4%, or $19.3 million, ahead of prior year.
The decrease in Diversified Fresh Produce – Americas & ROW revenue, net (8.4%, or $165.5 million), to $1.8 billion was primarily due to lower volumes of most commodities sold, particularly cherries, berries, grapes and apples,
partially offset by inflation-justified price increases, a strong recovery in pricing of grapes and apples after a challenging 2022 and continued strong performance for potatoes and onions in North America.
The decrease in Diversified Fresh Produce – Americas & ROW Adjusted EBITDA (2.7%, or $1.2 million) to $42.6 million was primarily due to a weak performance for the North American berry business and lower profits in the
Chilean cherry business due to seasonal timing differences, partially offset by strong recovery in Chilean apples and grapes after challenging seasons in 2022 and by strong trading activity for most other products that we market in North
America, particularly for potatoes and onions.
Overview
The primary purpose of our financial management strategy is to maintain adequate capital resources to meet financial obligations, optimize capital structure in order to maximize shareholder value and maintain financial flexibility
to execute strategic initiatives.
Primary sources of cash flow for Dole have historically been cash flow from operating activities, the issuance of debt and bank borrowings. We have a history of borrowing funds internationally and expect to be able to continue to
borrow funds over the long term. Material cash requirements have included payments of debt and related interest, capital expenditures, investments in companies, increases in ownership of subsidiaries or companies in which Dole holds
equity investments and payments of dividends to shareholders.
We expect to use the net proceeds from the Vegetables exit process, if and when completed, primarily for the reduction of debt.
Based on expected cash flow from operating activities over the next year, we believe our working capital, as an indicator of our ability to satisfy short-term obligations, is sufficient. Beyond the upcoming year, we believe that cash
flows from operating activities, available cash and cash equivalents and access to borrowing facilities will be sufficient to fund any future capital expenditures, debt service, dividend payments and other capital requirements going
forward.
44
Table of Contents
Cash Flows
The following table summarizes Dole’s consolidated cash flows for the years ended December 31, 2023 and December 31, 2022:
Year Ended
December 31, December 31,
2023 2022
Cash provided by (used in) continuing operations, net: (U.S. Dollars in thousands)
Operating activities $ 298,605 $ 323,612
Investing activities 5,224 (54,071)
Financing activities (229,998) (173,396)
Foreign currency impact 5,448 (20,712)
Cash used in discontinued operations, net (31,114) (97,154)
Net increase (decrease) in cash 48,165 (21,721)
Cash and cash equivalents, beginning, including discontinued operations 228,840 250,561
Cash and cash equivalents, ending, including discontinued operations $ 277,005 $ 228,840
Cash flows provided by operating activities were $298.6 million for the year ended December 31, 2023, compared to $323.6 million for the year ended December 31, 2022. The current year was positively impacted by increased
collections of receivables. There was also an increase in cash flows during the current year from changes in inventory, as stock levels in 2022 were higher to protect against sourcing challenges for paper and agricultural chemicals. The
prior year comparative period was positively impacted by a third-party trade receivables sales arrangement which delivered incremental cash inflows of $167.6 million. Refer to Note 8 “Receivables” for further detail on these
arrangements. The positive impact in the comparative period from the trade receivable sales arrangement was partially offset by longer collection times due to global logistics challenges.
Cash flows provided by investing activities were $5.2 million for the year ended December 31, 2023, compared to cash flows used of $54.1 million for the year ended December 31, 2022. The increase in cash provided by investing
activities was driven by higher proceeds received on asset sales, primarily related to land sales in Hawaii, and lower capital expenditures.
Cash flows used in financing activities were $230.0 million for the year ended December 31, 2023, compared to $173.4 million for the year ended December 31, 2022. The increase in cash used in financing activities was primarily
attributable to higher repayments of debt, net of borrowings.
Cash used in discontinued operations decreased to $31.1 million for the year ended December 31, 2023, compared to $97.2 million for the year ended December 31, 2022. The comparative period was negatively impacted by the
packaged salad recall and plant suspensions in December of 2021, which led to lower revenues and additional costs in 2022.
Included in cash tax payments, in the year ended December 31, 2023 and December 31, 2022, is $10.2 million and $5.4 million, respectively, for the repatriation tax under Internal Revenue Code Section 965. Repatriation tax
payments for fiscal year 2024 and fiscal year 2025 are expected to be $13.5 million and $16.7 million, respectively.
Net Debt
Net debt is the primary measure used by management to analyze the Company’s capital structure and financial leverage. Net debt is a non-GAAP financial measure, calculated as cash and cash equivalents less current debt, long-
term debt and bank overdrafts, excluding debt discounts and issuance costs. Management believes that net debt is an important measure to monitor leverage and evaluate the consolidated balance sheets.
45
Table of Contents
The following table sets forth a reconciliation of cash and cash equivalents and total debt to net debt as of December 31, 2023 and December 31, 2022:
Under the terms of the Credit Agreement entered into on March 26, 2021 (and subsequently amended on August 3, 2021), the Company has a senior secured revolving credit facility (the “Revolving Credit Facility”) in place which
provides for borrowings of up to $600.0 million and two term loan facilities (“Term Loan A” and “Term Loan B”, together the “Term Loan Facilities”) which provided for borrowings of $300.0 million and $540.0 million, respectively.
Total amounts outstanding under the Revolving Credit Facility and the Term Loan Facilities were $900.7 million as of December 31, 2023. Based on the terms of the Credit Agreement, we may be required to use a portion of the
proceeds from the Vegetables exit process (if and when completed) to make a prepayment on the Term Loan Facilities. The estimated minimum prepayment associated with the terms of the Fresh Express Agreement has been reclassified
from long-term debt, net, to current maturities in the consolidated balance sheets as of December 31, 2023. Because the Company now plans to exit the Fresh Vegetables division through an alternative process, the estimated minimum
prepayment may change, potentially to a material extent.
Dole’s borrowings under these facilities and other borrowing arrangements are linked to both variable and fixed interest rates. We have entered into interest rate swaps in order to mitigate a significant portion of the interest rate risk
associated with its variable-rate debt. In the second quarter of 2023, we amended the Credit Agreement to adopt SOFR in place of LIBOR as the U.S. dollar benchmark. The adoption of SOFR did not have a material impact to Dole.
Both cash and debt are denominated in various currencies, though primarily in the U.S. dollar, euro, British pound sterling and Swedish krona.
The Revolving Credit Facility and Term Loan Facilities are expected to provide long-term sustainable capitalization. See Note 14 “Debt” to the consolidated financial statements included herein for additional detail on the
Company’s debt.
Total available liquidity (defined as cash and cash equivalents plus available lines of credit) as of December 31, 2023 and December 31, 2022 was as follows:
In addition, we utilize third-party trade receivables sales arrangements to help manage our liquidity. Certain arrangements contain recourse provisions through which our maximum financial loss is limited to a percentage of
receivables sold under the arrangements. Total facility amounts under all third-party trade receivables sales arrangements were $285.0 million in the aggregate as of December 31, 2023.
46
Table of Contents
On May 23, 2022, Dole entered into a new three-year, committed trade receivables arrangement with recourse provisions that terminated $39.3 million of the Company’s existing non-recourse facilities. The maximum amount of
receivables that can be sold under this new agreement at any time is $255.0 million. We derecognize the sold receivables from the consolidated balance sheets, as we account for the arrangements as sales under ASC 860, Transfers and
Servicing.
Upon the execution of the new arrangement and initial derecognition of sold receivables, we received total gross cash proceeds of $206.9 million. Most of the initial cash proceeds were used to pay down certain balances on the
Revolving Credit Facility.
As of December 31, 2023, we had derecognized trade receivables related to non-recourse facilities and facilities with recourse provisions of $13.2 million and $246.8 million, respectively. As of December 31, 2022 we had
derecognized trade receivables related to non-recourse facilities and facilities with recourse provisions of $11.9 million and $237.2 million, respectively.
Capital Expenditures
Capital expenditures are cash outflows or commitments that result in additions to property, plant and equipment or other long-lived assets. Capital expenditures for the year ended December 31, 2023 were $78.0 million, as
compared to $85.6 million for the year ended December 31, 2022.
Principal capital expenditures planned for 2024 consist primarily of reinvestment in logistics assets, including vessel dry dockings, logistics equipment reinvestments and vehicles reinvestments, ongoing reinvestments in existing
farming assets, both with replanting and new investments, investments in warehousing, cold storage, ripening and processing equipment across the business and continued investment in ongoing IT projects. The Company expects to fund
these capital expenditures through operating cash flows, existing bank borrowings and, potentially, finance leases in lieu of direct capital investments. Budgeted capital expenditures are not contractual and planned projects can be scaled
back if the Company’s strategic objectives or economic conditions change.
Contractual Commitments
The following table sets forth Dole’s contractual maturities of certain significant commitments as of December 31, 2023:
Contractual Maturity
2024 Thereafter
(U.S. Dollars in thousands)
Debt and bank overdrafts $ 223,904 $ 836,748
Estimated interest payments1 52,247 178,714
Finance lease obligations 7,934 29,384
Operating lease obligations 75,893 352,240
Accrued income taxes2 13,480 16,664
Purchase commitments:
For ensuring a steady supply of inventory3 908,865 817,087
For fixed assets and other 8,111 46
Total $ 1,290,434 $ 2,230,883
1
Estimated interest payments comprise payments for interest on borrowings. This does not include interest expense for certain short-term borrowing lines and overdraft facilities, fees related to trade receivables sales arrangements, commitment fees and amortization of discounts and issuance
costs. Interest payments are calculated for debt based on applicable rates and payment dates. For variable-rate debt, the December 31, 2023 rate has been assumed for all years presented. We note that this is an estimate of future payments and that actual amounts will vary to some degree, the
extent of which cannot be estimated at this time, as interest rates are expected to change in the short-term.
2
Liabilities of $12.0 million for unrecognized tax benefits plus accrued interest and penalties have been excluded from the table above. At this time, the settlement period for unrecognized tax benefits cannot be determined. In addition, any payment related to unrecognized tax benefits may be
partially or fully offset by reductions in payments in other jurisdictions.
3
In order to secure sufficient product, packaging, agrochemicals and other supplies to meet demand and maximize volume incentive rebates, the Company has historically entered into non-cancelable agreements with independent vendors and growers for purchases in the normal course of
business.
47
Table of Contents
Timing of payments for the above contractual obligations is based on payment schedules for those obligations where set payments exist. For other obligations with no set payment schedules, estimates for the most likely timing of
cash payments have been made. The ultimate timing of these future cash flows may differ from the estimates.
Information regarding pension commitments and funding requirements is not included in the table above. The level of contributions to pension plans is determined according to statutory minimum funding requirements, as well as
Dole’s own policies. Depending on the country and the plan, the funding level is monitored periodically, and the contribution amount amended appropriately. Consequently, the amounts that might become payable in the future cannot be
estimated with certainty. In the year ended December 31, 2023, employer contributions and direct benefit payments related to our defined benefit pension and other postretirement benefit plans amounted to $19.4 million and are estimated
to be $22.3 million for the year ended December 31, 2024. Refer to Note 15 “Employee Benefit Plans” to the consolidated financial statements included herein for further information on employee benefit obligations.
In addition, our current capital allocation priorities are focused on investing wisely to support growing both our business operations and dividend payment. On November 15, 2023, the Board of Directors of Dole plc declared a
cash dividend of $0.08 per share. The dividend was subsequently paid on January 4, 2024 for a total payment of $7.6 million. On February 28, 2024, the Board of Directors of Dole plc declared a cash dividend of $0.08 per share, to be
paid on April 4, 2024. We expect to pay dividends from funds received from subsidiary operations which may be restricted as a result of the laws of their jurisdiction or organization. We do not intend to change our dividend policy in the
near or long term, but we may not pay dividends according to the policy, or at all, as determined at the discretion of the Board of Directors, acting in compliance with applicable laws and contractual restrictions.
We expect to fund contractual obligations and other expected capital commitments with existing cash, cash flows from operations, and available borrowings when necessary, and believe we have sufficient sources of liquidity to do
so.
In connection with certain acquisitions, we have issued contingent consideration through earn-out agreements in which we are subject to making future payments that are contingent on the acquiree or investment achieving certain
financial targets. As of December 31, 2023, the fair value of contingent consideration arrangements amounted to $9.1 million, expected to be paid from 2024 to 2027.
We have certain noncontrolling interests (“NCI”) that contain put options for the related subsidiary, which obligate the Company to acquire the NCI’s shareholding in the subsidiary at a future date upon exercise. The exercise
prices of the put options are based on future earnings of the underlying subsidiary and classified as redeemable NCI in mezzanine equity. As of December 31, 2023, the carrying value of redeemable NCI was $34.2 million with a total
gross redemption value of $40.3 million, had the options been exercised at December 31, 2023, payable over a maximum of three years.
As of December 31, 2023, Dole was contingently liable for guarantees of indebtedness owed by third parties and investments in unconsolidated affiliates of $48.6 million and $6.4 million, respectively. These guarantees are
typically issued in respect of bank borrowings and trading obligations arising in the ordinary course of business, have various terms and are not individually significant. These amounts represent the maximum potential future payments
that Dole could be required to make under the guarantees. However, management has concluded that the likelihood of any significant amounts being paid by Dole under these guarantees is not likely.
In addition to those already described, Dole is subject to various contingencies with respect to taxes, labor, litigation and other claims that arise in the normal course of business. Contingencies contain inherent uncertainties and to
the extent that we believe these contingencies will probably be realized, a liability has been recorded in the consolidated balance sheets. Based on information currently available to the Company and legal advice, we believe other such
items will not, individually or in the aggregate, have a material adverse effect on the consolidated financial statements. Refer to Note 19 “Contingencies” to the consolidated financial statements included herein for further detail on Dole’s
contingencies.
Other than the third party trade receivables sales arrangements and various guarantees described above, the Company does not have any other off-balance sheet arrangements that have, or are reasonably likely to have, a material
current or future impact to the consolidated financial statements.
48
Table of Contents
We implement certain research and development programs and policies in the normal course of business that are predominantly focused on sustaining the productivity of company-owned agricultural lands, food safety, nutrition
science, product quality, biological pest control, development of disease-resistant produce, value-added product development and packaging design. Current and historical research and development costs incurred by the Company are not
material and research and development initiatives are not expected to have a material impact on the Company’s results in the future. Refer to Note 2 “Basis of Presentation and Summary of Significant Accounting Policies” to the
consolidated financial statements included herein for further detail.
D. Trend information
As outlined in “Item 5A. Operating Results”, results of operations are affected by numerous factors, including the balance between the supply of and demand for products and competition from other fresh produce companies. Our
results of operations are also dependent on the ability to supply a consistent volume and quality of fresh produce to served markets. Set forth below are other general key factors that have had and may have a significant impact on Dole’s
results of operations in the future.
Matching marketplace demand with supply from Dole-owned farms and local and global producers is a core competency for our business. Fresh produce supply and demand management is complicated by the inherent perishability
and relatively short shelf-life of these products and the influence of environmental factors beyond our immediate control, including unexpected weather events and climate change. For example, a warm spell can drive higher strawberry
sales, while persistent cold weather can reduce those sales. Overly cold or overly warm weather can disrupt the timing of production, and, when more severe, weather can limit yields and supply overall. Adverse weather may also impact
supply chains, preventing us from procuring supplies necessary for company operations and delivering products to customers. Outsized weather events and natural disasters may disrupt entire seasons of operations and can require
significant investments in order to fund recovery. Prices and margins fluctuate accordingly. Supply planning traverses seasons and continents and is often conducted months in advance of sale, limiting our capacity to adjust volumes.
However, because of the diversity of our customers and producers, as well as our ability to match longer-term supply contracts with longer-term sales contracts and shorter-term supply with more market volumes and pricing, we are able
to maintain flexibility to adequately manage operations.
Dole is exposed to purchases and sales transactions in several local currencies, primarily the U.S. dollar, euro, Swedish krona, British pound sterling, Costa Rican Colón and Chilean peso. Refer to discussion above in “Item 5A
Operating and Segment Results” as well as further discussion in “Item 3D. Risk Factors-currency exchange fluctuations may impact the results of our operations” and “Item 11. Quantitative and Qualitative Disclosures about Market
Risk.” for additional information on foreign currency fluctuations.
Competitor Activity
By virtue of the geographic, product and sectoral diversity evident across the business, Dole’s operations are affected by the activities of a wide variety of competitors in different product categories and sales channels. Competition
can be regional or sector specific, can affect individual business units or can influence the wider marketplace. Increased competition, while typically lowering prices and margins in general, can also result in reduced volumes arising from
the loss of key categories or customers.
Dole conducts business, grows produce and sources product in certain jurisdictions that have imposed, or are considering imposing, new or increased legal and regulatory requirements to reduce or mitigate the potential effects of
climate change, including regulation of greenhouse gas emissions and potential carbon pricing programs, and to increase transparency in the areas of environmental, social and corporate governance matters through more robust reporting
requirements. Compliance with these legal, regulatory and reporting requirements will likely result in increased costs and additional investment in facilities, new employees and external advisors, equipment and process-improvement.
However, the extent of the impact on our financial results, scope and timing of any new or increased regulation related to climate change is uncertain and cannot be estimated at this time.
49
Table of Contents
Effective in January of 2024, the EU expanded the scope of its greenhouse gas emissions trading scheme (“ETS”) to include maritime transport, which covers our commercial cargo business and other maritime shipping operations
in Europe. This scheme, which had until now applied primarily to industrial companies and airlines, is a cap-and-trade system for carbon dioxide (“CO2”) emissions to encourage industries to improve their CO2 efficiency. Under the
legislation, we will be required to purchase allowances on the open market for our CO2 emissions from maritime operations in Europe. The scope of our emissions that are covered includes 100% of emissions on voyages departing from
and arriving at a port under jurisdiction of the EU and 50% of emissions on voyages departing from a country outside of the EU and arriving at an EU port or departing from an EU port and arriving in a port located in a non-EU country.
The ETS for the maritime industry will be phased-in, whereby we will have to purchase allowances for 40% of our emissions in scope in 2024, 70% in 2025 and 100% in 2026 and thereafter. While the ETS is expected to have an adverse
impact on our operating results, beginning in 2024, the extent of such impact based on the current estimated cost of allowances is not expected to be material. However, we are currently unable to fully assess our ability to obtain sufficient
carbon credits or the potential for the future cost of such credits to have a material adverse effect on our business, operations or financial condition.
In addition to the impacts from regulatory and compliance requirements discussed above, from time to time, we have been and most likely will continue to be impacted by adverse weather events, whose effects may be exacerbated
by climate change. While supply impacts can be mitigated through our diversified sourcing portfolio and contract management, any incremental costs and write-offs from weather-related events may be material to Dole’s future operations
and cannot be reliably estimated. However, the Company aims to abate these potential impacts through insurance arrangements against weather-related events and continuing maintenance and investment initiatives to improve the
durability of our fixed asset portfolio.
Furthermore, we expect to incur additional costs in connection with our commitment to and execution of our sustainability goals. We have recently developed sustainability goals for 2025 and 2030, which include initiatives
focused on environmental sustainability, as well as on our governance and social impact. We have already made important progress in lowering our environmental footprint. For example, in 2022, we reduced our Scope 1 and Scope 2
global emissions by 12% from 2020. This reduction is primarily attributable to investments in two new and more efficient vessels to transport produce from Latin America to the U.S., the cost of which was approximately $50.0 million in
total and was funded by long-term borrowing arrangements, a reduction in our use of refrigerants and an increased reliance on renewable energy sources. Other notable projects in recent years include the deployment of two 2.8 Megawatt
wind turbines at our salad processing plant in Soledad, California, increases in investments in plantings of non-fruit bearing trees on owned land, the installation of solar panels at facilities in Ireland, Czechia, Brazil and the U.K. and
electrification projects at our San Diego port operations that resulted in the addition of five new electric utility rigs and two new electric yard hustlers. While we expect to make additional expenditures to meet our sustainability goals, at
this time, the scope, timing and extent of these additional expenditures is uncertain and cannot be estimated. Refer to “Item 4b. Business Overview” for further detail on the Company’s sustainability and environmental initiatives.
While we believe our environmental, sustainability and governance goals align with our financial and operational priorities, they are aspirational and may change, and there is no guarantee that they will be met or that they will not
have a material impact on our future results.
International regulatory restrictions, the application of tariffs and restrictions on free trade by nations or trading blocs can influence the performance of the Company both directly, if sales are impacted by issues in a core market,
and indirectly, if competitor volumes are diverted into core markets from markets where the Company does not compete as strongly. Restrictions vary but can take the form of outright bans on the imports of products, regulatory
restrictions which preclude the importation of products grown outside of strict specifications or taxes applied to disincentivize importation from other countries. Dole’s exposure to regulatory restrictions or restrictions on free trade and
tariffs will typically depend on the profile of any given business unit’s produce sales and customer base.
The preparation of consolidated financial statements in accordance with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenue and expenses. The
Company bases estimates on past experience and other assumptions that are believed to be reasonable under the circumstances, and management evaluates these estimates on an ongoing basis. Actual results may differ from those
estimates.
50
Table of Contents
Critical accounting estimates are those that materially affect or could affect the consolidated financial statements and involve difficult, subjective or complex judgments by management. A thorough understanding of these critical
accounting estimates and their underlying nature, assumptions and inputs is essential when reviewing the consolidated financial statements of the Company. Management believes that the accounting estimates listed below are the most
critical, as they involve the use of significant estimates and assumptions as described above.
See Note 2 “Basis of Presentation and Summary of Significant Accounting Policies” to the consolidated financial statements included herein for more information on Dole’s accounting policies.
Goodwill represents amounts arising on the acquisition of subsidiaries or equity-accounted affiliates as a result of the fair value of consideration transferred exceeding the fair value of net identifiable assets and liabilities assumed
in a business combination. Goodwill is allocated to reporting units and is not amortized but is tested annually for impairment on the first day of the fourth quarter each financial year and more frequently when events or changes in
circumstance indicate that it may be impaired.
During the annual goodwill impairment test, management may assess qualitative factors to determine whether it is more likely than not that the fair value of each reporting unit with goodwill is less than its carrying amount.
Qualitative factors include, but are not limited to, industry and market considerations, overall financial performance and other relevant events and factors affecting the reporting unit. If the results of the qualitative assessment indicate that
it is more likely than not that the fair value of a reporting unit is less than its carrying value, a quantitative assessment is required for that reporting unit. Alternatively, the Company may bypass the qualitative assessment and perform a
quantitative impairment test.
For the fiscal year 2023 annual impairment assessment of each reporting unit with goodwill, the Company elected to bypass the qualitative assessment and perform the quantitative assessment with the assistance of a third-party
specialist. We used an income approach (discounted cash flows) to estimate the fair value of each reporting unit. Key drivers in the fair value analysis included the allocation of net assets to reporting units, discount rates and long-term
growth rates to derive expected future cash flows. Cash flow projections used in the fair value analysis are considered Level 3 inputs and generally consist of management’s estimates of revenue growth rates and profitability, which for
management is based on Adjusted EBITDA. The values applied to these key assumptions are derived from a combination of external and internal factors, based on past experience coupled with management’s future expectations about
business performance. Discount rates used in the analysis are generally estimated by calculating a reporting unit-specific weighted average cost of capital to reflect the market assessment of risks specific to that reporting unit.
Dole’s reporting units are its reportable segments. As of the testing date of October 1, 2023, goodwill was allocated to the Company’s reporting units as follows:1
10/1/2023
(U.S. Dollars in millions)
Fresh Fruit $ 273.3
Diversified Fresh Produce – EMEA 139.0
Diversified Fresh Produce – Americas & ROW 88.6
1
No goodwill is allocated to the Fresh Vegetables reporting unit.
51
Table of Contents
The quantitative tests as of October 1, 2023 indicated two of Dole’s reporting units with allocated goodwill were considered to be at risk of future impairment. The fair values of the Fresh Fruit and Diversified Fresh Produce –
Americas & ROW reporting units were approximately 4% and 2% above their carrying amounts, respectively. All assets in the Fresh Fruit reporting unit and a significant amount of assets in the Diversified Fresh Produce – Americas &
ROW were obtained from the acquisition of Legacy Dole in July of 2021. The fair value of these reporting units has been impacted from an increase in the discount rate (weighted average cost of capital) assumptions as of the October 1,
2023 measurement date. The impact of this headwind was offset by positive trends in forecasted cash flows, primarily in the Fresh Fruit and the Diversified Fresh Produce – EMEA reporting units and, to a lesser extent, within the
Diversified Fresh Produce – Americas & ROW reporting unit. A 25-basis point increase in the applied discount rates would have resulted in an impairment of approximately $4.1 million in the goodwill allocated to the Diversified Fresh
Produce – Americas & ROW reporting unit and headroom of less than 1% for the Fresh Fruit reporting unit. Unfavorable changes to key assumptions, market conditions and macroeconomic circumstances could result in future
impairment. The quantitative test for the Diversified Fresh Produce – EMEA reporting unit indicated its fair value is sufficiently above its carrying amount.
The Company’s indefinite-lived intangibles other than goodwill are considered to have indefinite lives, because they are expected to generate cash flows indefinitely. These indefinite-lived intangible assets are not amortized but are
reviewed for impairment as of the first day of the fourth quarter of each fiscal year, or sooner if impairment indicators arise. To test these assets for impairment, the Company may first perform a qualitative assessment to determine if it is
more likely than not that the carrying amount of each of its indefinite-lived intangible assets exceeds its fair value. If this test indicates the fair value is less than the carrying amount, a quantitative assessment is performed. Alternatively,
the qualitative impairment test may be bypassed, and the Company may elect to perform a quantitative test.
For the 2023 annual impairment assessment of the DOLE brand indefinite-lived intangible asset, the Company elected to bypass the qualitative assessment and perform the quantitative assessment with the assistance of a third-
party specialist. The DOLE brand was valued using a relief from royalty rate approach as of the testing date of October 1, 2023. The key assumptions in the fair value analysis were the royalty rates used to estimate royalty payments
saved by owning the brand, the expected long-term growth rate and the discount rate (weighted average cost of capital). These assumptions were developed with the assistance of a third-party specialist and consider comparable market
data, company-specific factors and management’s estimates of revenue growth rates and profitability.
The quantitative test as of October 1, 2023 indicated the DOLE brand was considered to be at risk for future impairment. The fair value of the DOLE brand exceeded its carrying amount by approximately 2%. The carrying amount
of the DOLE brand was $306.3 million at the testing date. As with the quantitative goodwill impairment tests, the decline in fair value of the brand is largely due to the increase in the discount rate (weighted average cost of capital)
assumptions as of the October 1, 2023 measurement date. The unfavorable impact of this assumption was offset by positive trends in forecasted cash flows. A 25-basis point increase in the discount rate would have resulted in headroom
of less than 1%. Unfavorable changes to key assumptions, market conditions and macroeconomic circumstances could result in future impairment.
For each of the other indefinite-lived intangible assets, the Company performed qualitative assessments. These assessments indicated the fair values of the indefinite-lived intangible assets exceeded their carrying values. Therefore,
no impairment was recorded.
As of December 31, 2023, management is not aware of any items or events that would cause an adjustment to the carrying amount of goodwill or other indefinite-lived intangible assets.
Income Taxes
Dole is subject to income taxes in Ireland, the U.S. and numerous other foreign jurisdictions. Income taxes are accounted for under the asset and liability method, which requires the recognition of deferred tax assets and liabilities
for the expected future tax consequences of events that have been included in the financial statements. Under this method, deferred tax assets and liabilities are determined based on the differences between the financial statement and tax
basis of assets and liabilities using enacted tax rates in effect for the year in which the differences are expected to reverse. The effect of a change in tax rates on deferred tax assets and liabilities is recognized in income tax expense or
benefit in the period that includes the enactment date.
52
Table of Contents
Income tax expense or benefit, deferred tax assets and liabilities and liabilities for unrecognized tax benefits reflect management’s best estimate of current and future taxes to be paid. Significant judgments and estimates are
required in the determination of the consolidated income tax expense or benefit. Deferred income taxes arise from temporary differences between the tax basis of assets and liabilities and their reported amounts in the financial statements,
which will result in taxable or deductible amounts in the future. In evaluating the ability to recover deferred tax assets in the jurisdiction from which they arise, all available positive and negative evidence is considered, including
scheduled reversals of deferred tax liabilities, projected future taxable income, tax-planning strategies and results of recent operations. In projecting future taxable income, historical results are adjusted for the results of discontinued
operations and assumptions about the amount of future state, federal and foreign pretax operating income adjusted for items that do not have tax consequences. The assumptions about future taxable income require the use of significant
judgment and are consistent with the plans and estimates used to manage the underlying businesses.
The calculation of tax liabilities involves dealing with uncertainties in the application of complex tax laws and regulations in a multitude of jurisdictions across the Company’s global operations. ASC 740, Income Taxes (“ASC
740”), states that a tax benefit from an uncertain tax position may be recognized when it is more likely than not that the position will be sustained upon examination, including resolutions of any related appeals or litigation processes, on
the basis of the technical merits. Dole (1) records unrecognized tax benefits as liabilities in accordance with ASC 740 and (2) adjusts these liabilities when judgments change as a result of the evaluation of new information not previously
available. Because of the complexity of some of these uncertainties, the ultimate resolution may result in a payment that is materially different from the current estimate of the unrecognized tax benefit liabilities. These differences will be
reflected as increases or decreases to income tax expense or benefit in the consolidated statement of operations in the period in which new information is available.
In the normal course of business, Dole and its respective subsidiaries are examined by various federal, state and foreign tax authorities. Management regularly assesses the potential outcomes of these examinations and any future
examinations for the current or prior years in determining the adequacy of its provision for income taxes. Additional provisions for income taxes are established when, despite the belief that tax positions are fully supportable, positions
remain that do not meet the minimum probability threshold, which is a tax position that is more likely than not to be sustained upon examination by the applicable taxing authority. In addition, once the recognition threshold for the tax
position is met, only the portion of the tax benefit that is greater than 50% likely to be realized upon settlement with a taxing authority is recorded. The impact of provisions for uncertain tax positions, as well as the related net interest and
penalties, are included in income tax expense or benefit in the consolidated statements of operations.
Dole has a number of pension and other post-retirement benefit plans globally, both qualified and nonqualified, covering certain full-time employees. Benefits under these plans are generally based on each employee’s eligible
compensation and years of service, except for certain plans covering union employees, which are based on negotiated benefits. Pension costs and obligations are calculated based on actuarial assumptions, including discount rates,
compensation increases, expected return on plan assets, mortality rates and other factors.
Pension obligations and expenses are most sensitive to the discount rate and expected return on pension plan assets assumptions. Management determines the expected return on pension plan assets based on an expectation of
average annual returns over an extended period of years considering the asset allocation of the plans. In the absence of a change in our asset allocation or investment philosophy, this estimate is not expected to vary significantly from year
to year.
For our pension plans, the discount rate is determined based on a hypothetical portfolio of high-quality, non-callable, zero-coupon bonds with amounts and maturities that match the projected future benefit payments from that plan.
The weighted average discount rates for Dole’s U.S. pension plan obligations and net periodic benefit income were 5.10% and 5.31%, respectively, for the year ended December 31, 2023. A 25-basis point decrease in the discount rates
would increase the projected benefit obligation for the U.S. pension plans by $3.2 million, and the impact to the net periodic benefit income would be minimal. The weighted average discount rate of Dole’s international pension plan
obligations and net periodic benefit cost was 5.06% and 5.26%, respectively, for the year ended December 31, 2023. A 25-basis point decrease in the assumed discount rate would increase the projected benefit obligation and decrease the
net periodic benefit cost for the international pension plans by $6.8 million and $0.4 million, respectively.
53
Table of Contents
For our funded U.S. plan, the pension expense for the year ended December 31, 2023 was determined using an expected annual rate of return on plan assets of 6.80%. As of December 31, 2023, our U.S. pension plan investment
portfolio was invested approximately 23% in equity securities, 51% in fixed income securities and 14% in real estate, with the remainder in other investments. A 25-basis point change in the expected rate of return on pension plan assets
would impact net periodic benefit income for the year ended December 31, 2023 by $0.5 million.
For our international plans outside the U.S., the pension expense for the year ended December 31, 2023 was determined using an expected annual rate of return of plan assets of 4.36%. As of December 31, 2023, the investment
portfolio of international pension plans was invested approximately 13% in equity securities, 33% in fixed income securities and 6% in real estate, with the remainder in other investments. A 25-basis point change in the expected rate of
return on pension plan assets would impact net periodic benefit cost for the year ended December 31, 2023 by $0.5 million.
While management believes that the assumptions used are appropriate, actual results may differ materially from these assumptions. These differences may impact the amount of pension and other postretirement obligations and
future expense. Refer to Note 15 “Employee Benefit Plans” to the consolidated financial statements included herein for additional details of our pension and other postretirement benefit plans.
Set forth below are the names, ages and positions of our directors and executive officers as of the date hereof.
Carl McCann, BBS, MA, FCA, has been a director since February 2021 and serves as our Executive Chair of the Board of Directors. Mr. McCann served as Executive Chair of Total Produce, a role he assumed in 2006. As
Executive Chair, Mr. McCann led Total Produce through numerous strategic initiatives and operational achievements, including its growth and expansion across European and North American markets, and more recently, its combination
with Dole Food Company. With over 40 years in the fresh produce industry, Mr. McCann began his career at KPMG and then moving to work in FII, later renamed Fyffes, in 1980. During this time, he held roles of increasing leadership,
including Finance Director, Vice Chair and Executive Chair, while also overseeing the execution of strategic priorities across the business. He notably led FII through its acquisition of Fyffes in 1986 and of Dutch company Velleman in
the late 1990’s, both of which allowed the company to expand into key regions across continental Europe and the U.K. Mr. McCann was appointed Chair of Fyffes in 2003, before assuming his role of Executive Chair at Total Produce on
the demerger of Total Produce and Fyffes. In addition to these roles, Mr. McCann is also Chair of Balmoral International Land Holdings plc (“Balmoral”) and serves on the boards of several other companies. We believe that Mr. McCann
is qualified to serve on our Board of Directors due to his strategic vision for the Company and his long experience as an executive director of publicly traded companies. He earned his undergraduate and master’s degrees from Trinity
College Dublin and is a Fellow of the Institute of Chartered Accountants in Ireland.
54
Table of Contents
Rory Byrne, B Comm, FCA, has been a director since February 2021 and serves as our Chief Executive Officer. Mr. Byrne was appointed Chief Executive Officer of Total Produce in 2006. Mr. Byrne led Total Produce through
15 years of sustained profitability and significant acquisition-led and organic expansion, with total Group revenues more than tripling during his tenure, from $1.9 billion in 2006 to $6.5 billion in 2021. While serving as Chief Executive
Officer, he also oversaw Total Produce’s expansion into North American markets, including Total Produce’s 2013 investment in Canada-based Oppy and recent combination with Dole Food Company. Mr. Byrne has 34 years of
experience in the fresh produce industry, having begun his career at Fyffes in 1988. At Fyffes, he held a number of senior positions including Finance Director of the Group’s U.K. business and Managing Director of its Spanish operations
before becoming Managing Director of the General Produce Division in 2002. Mr. Byrne is well recognized across the industry for his unique combination of leadership ability, strategic vision, creativity and strong drive for success. We
believe that Mr. Byrne is qualified to serve on our Board of Directors due to his very extensive experience as a leader in the fresh produce industry and his experience as an executive director of a publicly traded company. He earned his
undergraduate degree from University College Dublin and is a Fellow of the Institute of Chartered Accountants in Ireland.
Johan Lindén, BBA, MBA, has been a director since July 2021 and serves as our Chief Operating Officer. Mr. Lindén was appointed as President and Chief Executive Officer of Dole Food Company in 2017. He began his career
at Dole Food Company in 2000 within the European operations, initially serving as general manager at Dole Food Company’s value-added operation until 2008. From 2005 to 2008, he additionally acted as Deputy General Manager for
Dole Food Company’s Swedish wholesale operation. In 2008, Mr. Lindén was promoted to General Manager Fresh Fruit Northern Europe and was subsequently promoted to President Dole Europe in 2010. In 2015, Mr. Lindén relocated
to Dole Food Company’s U.S. corporate headquarters where he served as President and Chief Operating Officer. We believe that Mr. Lindén is qualified to serve on our Board of Directors due to his tenure as a senior leader within Dole
Food Company and his extensive global experience within the produce industry. Mr. Lindén holds a B.B.A. in Business Administration from Schiller International University, Germany, with some of his undergraduate studies being
completed at Iowa State University. He attended graduate school at Harvard University and earned his MBA from the University of Cape Town.
Jacinta Devine, FCA, was appointed to the Board on June 30, 2022 and serves as our Chief Financial Officer. Prior to this appointment, she served as Company Secretary of Dole plc. Ms. Devine was appointed to the role of
Company Secretary of Total Produce plc in 2017 having previously held the role of Assistant Company Secretary. Ms. Devine joined the Group in 1996 and during this time has held a number of senior accounting and financial positions
including Divisional Finance Director of Ireland and the U.K. We believe that Ms. Devine is qualified to serve on our Board of Directors due to her longstanding experience in leadership positions in Total Produce and Dole plc, her
understanding of finance and financial reporting processes, her experience in senior financial positions and her experience and knowledge of corporate governance matters from her time as company secretary of a publicly traded
company. She is a Fellow of the Institute of Chartered Accountants in Ireland.
Timothy M. George, BA, MBA, has been a director since July 2021. Mr. George is Group Head of Lazard’s Consumer Retail and Leisure Group and a Vice Chair of Lazard. He has more than 35 years of experience in the
investment banking industry and has advised numerous companies in recent years in the consumer, food, beverage and retail sectors including Alcon, Coca-Cola Enterprises, Diageo PLC, Dine Brands Global, Firmenich, General Mills,
Givaudan, Kraft Heinz, McCain Foods, McDonald’s, Nestlé, Novartis, Post Holdings, Wendy’s International, Burger King and 3G Capital. Prior to joining Lazard, Mr. George was a Founding Partner of Greenhill & Co., LLC and a
member of Greenhill’s Management Committee. Mr. George also headed Greenhill’s Consumer Products, Food and Beverage Group. Before joining Greenhill & Co., he held numerous senior roles in Morgan Stanley & Co., including
Global Head of the Food, Beverage and Consumer Products Group - which he founded in 1989. Prior to 1984, Mr. George was a Vice President of Goldman Sachs and Assistant Treasurer of J.P. Morgan & Co. Mr. George served on the
Board of Trustees of The University of Chicago and was formerly a member of its Executive Committee and Chair of the Board’s Financial Planning Committee. Also, he was a member of the Advisory Council of the Board of the
University of Chicago Booth School of Business. Mr. George also served on the Board of Directors of Seminis, Inc., the largest developer, grower and marketer of fruit and vegetable seeds in the world. We believe that Mr. George is
qualified to serve on our Board of Directors due to his experience in U.S. leadership positions in investment banking and his detailed knowledge of the food industry. Mr. George has an MBA in Accounting and Finance from the
University of Chicago Booth School of Business and a BA in Economics and Finance from The University of Chicago.
55
Table of Contents
Imelda Hurley, FCA, BBS, has been a director since July 2021 and is a member of the Audit Committee. Ms. Hurley was appointed to the Board of Total Produce as a Non-Executive Director in January 2019 and was a member
of the Audit and Nomination Committees. Ms. Hurley has over 20 years of experience in leadership roles across a variety of sectors, including significant international food and agri-industry experience. She is currently the Chief
Executive Officer of Coillte (appointed in 2019), Ireland’s commercial state forestry company - which is responsible for managing over one million acres of primary forested land. In addition, she is a Non-Executive Director of IBEC, the
Irish Business and Employers Confederation, which is Ireland’s largest business representative group, and previously served as President of that organization. From 2014 to 2018, Ms. Hurley was an Executive Director and Chief
Financial Officer at Origin Enterprises plc, an international agri-services business. From 2011 to 2014, she was based between Hong Kong and the People’s Republic of China where she was Chief Financial Officer and Head of
Sustainability for PCH International, a Silicon Valley-backed product development and supply chain management business. From 2001 to 2011, she held various positions including that of Group Finance Director at Greencore Group plc,
an international convenience food producer. In addition, she worked in the Audit & Business Advisory practice of Arthur Andersen from 1994 to 2001. Ms. Hurley has also been a member of the Board of Bord Gais Eireann/Ervia,
Ireland’s state-owned gas and electricity company, from 2010 to 2014 and served as Audit Committee Chair from 2011 to 2014. We believe that Ms. Hurley is qualified to serve on our Board of Directors due to her extensive experience in
leadership positions in a number of large multinational food and supply chain management businesses, her understanding of finance and financial reporting processes and her experience as an executive director of a publicly traded
company. Ms. Hurley holds a Bachelor of Business Studies from the University of Limerick in Ireland, is a Fellow of the Institute of Chartered Accountants in Ireland and has completed the Advanced Management Program at Harvard
Business School.
Rose Hynes, BCL, AITI, has been a director since July 2021, is the lead independent director and is Chair of the Nomination and Corporate Governance Committee. Ms. Hynes was a director of Total Produce from November
2006. She is also currently Chair of the Irish Aviation Authority and is a Non-Executive Director of Eir, an Irish telecommunications company. She is a member of the University of Limerick Foundation Board. She is also an Adjunct
Professor of Law at the University since 2014. Ms. Hynes has over 30 years of experience as a Non-Executive Director, senior executive and a commercial lawyer. In 1988, she joined GPA Group plc, the aircraft leasing and financing
company, and held a number of senior management positions, including General Counsel and Head of the Commercial Department. GPA was one of the world’s largest lessors and financiers of aircraft. She is a former Non-Executive
Director of a number of companies, including Bank of Ireland, Fyffes plc, Aer Lingus Group plc and a former Chair of Bord Gais, the Irish Government-owned gas and electricity company, Shannon Group plc, the Irish Government-
owned airport and property company and Origin Enterprises plc (the Irish and U.K. Stock Exchange listed Agri Services company). We believe that Ms. Hynes is qualified to serve on our Board of Directors due to her background as a
lawyer and her wide-ranging experience as a senior non-executive director of other publicly traded companies. Ms. Hynes is a lawyer and a University College Dublin law graduate. She is an Associate of the Irish Institute of Taxation and
of the Chartered Institute of Arbitrators. She also holds a Diploma in Applied Finance from the Irish Management Institute.
Michael Meghen, BBS LLB, has been a director since July 2021 and is chair of the Compensation Committee and a member of the Nomination and Corporate Governance Committee. Mr. Meghen was appointed to the Board of
Total Produce as a Non-Executive Director in July 2018. Mr. Meghen was Chair of the Compensation Committee and a member of the Nomination Committee of Total Produce. For many years, he was a senior corporate partner at Arthur
Cox, Ireland’s leading legal firm, in which he held a number of senior leadership roles and where he specialized in mergers and acquisitions. His years with Arthur Cox coincided with a period of transformational growth, both in the home
market and internationally for many Irish businesses, and he led a diverse range of mergers, acquisitions and disposals across various industry sectors, including manufacturing, information technology, hotels, retailing and distribution.
Mr. Meghen also has experience in the negotiation and implementation of acquisitions, joint ventures and commercial contracts in Europe and the U.S., as well as in Central and South America. Mr. Meghen was formerly a non-executive
director of Mars Foods Ireland Limited. We believe that Mr. Meghen is qualified to serve on our Board of Directors due to his background as a senior corporate lawyer and his in-depth experience of international mergers and acquisitions.
Mr. Meghen is a lawyer and holds degrees in business and in law from Trinity College Dublin.
56
Table of Contents
Helen Nolan, B Comm, FCA, has been a director since July 2021 and is a member of the Audit Committee. Ms. Nolan was appointed to the board of Total Produce as a Non-Executive Director in July 2019 and was a member of
the Audit Committee. Ms. Nolan has extensive experience in senior leadership roles across a variety of industries. As a senior executive at Bank of Ireland Group plc, she held the roles of Group Secretary and Group Chief Internal
Auditor. Prior to that, she held a number of senior finance roles in banking and life and pensions businesses, including Divisional Finance Officer for the Capital Markets Division of Bank of Ireland. Ms. Nolan currently holds the roles of
Director and Chair of the Audit Committee at Aviva Life and Pensions Ireland DAC, Companjon Insurance DAC, a European digital insurance company backed by Swiss insurer La Molibiere, and previously held the role of Director at
Our Lady’s Hospice and Care Services DAC. She is also a Director of the Institute of Directors Ireland, where she chairs the Finance and Governance Committee. She chaired the Audit Committee of the Irish Department of Agriculture
for a number of years. We believe that Ms. Nolan is qualified to serve on our Board of Directors due to her experience in significant leadership positions and her understanding of finance and financial reporting processes. Ms. Nolan is a
Fellow of the Institute of Chartered Accountants in Ireland, having trained with KPMG. She holds a Bachelor of Commerce degree from University College Dublin and completed the Columbia Senior Executive Program at Columbia
Business School.
Jimmy Tolan, B Comm, FCA, has been a director since July 2021. Mr. Tolan has acted as an adviser to Total Produce on the initial investment in DFC Holdings in 2018 and has served on the Board of Dole Food Company since
2018. Mr. Tolan is currently Chair of Carechoice, one of Ireland’s leading nursing home providers and served as Chair of pharmacy retail group McCauley until its sale to Uniphar plc. Mr. Tolan has over 30 years of experience in the
fresh produce industry, having joined Fyffes plc in 1990. He led the Corporate Development function in Fyffes from 1995 until he was appointed Chief Executive Officer of Fyffes in 2006, on the demerger of Total Produce and Fyffes. In
2008 Mr. Tolan was appointed Chief Executive Officer of VHI, Ireland’s largest health insurer, where he served as Chief Executive Officer until 2012. He subsequently led PwC Ireland’s healthcare advisory business between 2012 and
2014. Since 2015, Mr. Tolan has been a non-executive chair of a number of organizations. He is a former Chair of the Rehab Group, one of Ireland’s largest intellectual disability service providers. Mr. Tolan’s interest throughout his
career, as both an executive and non-executive, is in supporting companies and organizations to achieve significant and sustainable growth. We believe that Mr. Tolan is qualified to serve on our Board of Directors due to his significant
experience in mergers and acquisitions in the fresh produce industry and his experience as a director and non-executive director of other publicly traded companies. Mr. Tolan holds a Bachelor of Commerce degree and a Diploma in
Professional Accounting from University College Dublin and is a Fellow of the Institute of Chartered Accountants in Ireland.
Kevin Toland, FCMA, has been a director since July 2021 and is Chair of the Audit Committee and member of the Compensation Committee. Mr. Toland was appointed to the board of Total Produce as a Non-Executive Director
in July 2015 and was Chair of the Audit committee and a member of the Compensation Committee (prior Chair). He has 30 years of senior leadership experience in the beverage, food, nutrition, aviation and retail sectors. Mr. Toland was
appointed as Chair of Ervia from 1 January 2023 and is also the chair of Invert Robotics Group Limited. He is Chair of Vasorum, a medical device company, and a Non-Executive Director of Bewleys. He was Chief Executive Officer of
Aryzta AG, the global bakery company, from 2017 to 2020, prior to this he was Chief Executive Officer of daa plc, a state-owned international airport and airport related services group, from 2013 to 2017. Mr. Toland has also held
various positions with Glanbia Plc, the global cheese and nutrition company, including Executive Director of Glanbia PLC from 2002 to 2012, Chief Executive and President of Glanbia USA and Global Nutritionals from 2005 to 2012
and prior to this, experiences including Group Development Director, Chief Executive Officer of Glanbia Consumer Foods and Group Strategy and Marketing Director. He has also worked with Coca Cola in Russia and Ireland and with
Diageo in Budapest and Ireland in various senior leadership roles. Mr. Toland also served as a director of the Irish Business and Employers Confederation from 2014 to 2021, including as Chair of the Finance and Audit Committee from
2019 to 2021. He was Chair of Identigen, a private equity-owned AgriTech company, that was recently sold to Merck plc. We believe that Mr. Toland is qualified to serve on our Board of Directors due to his high-level leadership
experience in the food industry and his experience as a director of other publicly traded companies. Mr. Toland is a Fellow of the Chartered Institute of Management Accountants and holds a Diploma in Applied Finance from the Irish
Management Institute.
57
Table of Contents
B. Compensation.
EXECUTIVE COMPENSATION
This section describes the remuneration of the executive directors of Dole plc, Carl McCann, Executive Chair; Rory Byrne, Chief Executive Officer; Johan Lindén, Chief Operating Officer; and Jacinta Devine, Chief Financial
Officer (collectively referred to herein as our “named executive officers”).
Objectives
Our policy on the remuneration of our named executive officers is designed to ensure that employment and remuneration conditions for senior executives effectively reward, retain and motivate them to perform in the best interests
of shareholders.
Total direct pay in Dole plc for our named executive officers consists of three components: (1) basic pensionable salary, non-pensionable salary, as applicable, and director fees (together defined as “Fixed Salary”), (2) annual non-
equity incentive awards, and (3) annual equity awards under the Dole plc 2021 Omnibus Incentive Compensation Plan (the “Omnibus Plan”).
Following a review by the Compensation Committee and the information gathered by and advice received from FW Cook, the Compensation Committee approved the fiscal year 2023 compensation and benefits provided to our
named executive officers as set forth in the table below. Annual non-equity incentive awards are determined based on the achievement of certain strategic and performance targets, and annual equity awards are granted under the Omnibus
Plan. The table below reflects Fixed Salary with effect from January 1, 2023.
Our named executive officers are paid fees in respect of their director roles and responsibilities on the board of Dole plc (“director fees”). These fees are commensurate with fees paid to non-employee directors of Dole plc and form
part of their Fixed Salary.
We do not have any written employment agreements with the named executive officers governing their duties and responsibilities as our executive directors.
The remuneration of our named executive officers is set by our Compensation Committee. In determining the terms and the amounts of our named executive officers’ compensation, our Compensation Committee primarily
considers the types and amounts paid by the Group’s peer group companies to individuals in similar roles, the experience and performance of each executive and the amount needed to attract or retain, as applicable, a particular executive
officer. The Compensation Committee also considers the objectives of the Group’s executive compensation program when determining the types and amount of compensation to be provided to our named executive officers.
Benchmarking
The Committee has retained the services of FW Cook, an independent executive compensation consulting firm, to review and advise on the Group’s executive compensation program, including the competitiveness of the Group’s
executive compensation programs relative to comparable companies. FW Cook provides the Committee with relevant market data relating to each named executive officer’s position at Dole plc.
58
Table of Contents
The Committee reviews the external pay data provided by FW Cook to understand the relevant labor markets in which Dole plc competes for executive talent. To this end, multiple data sources are considered to facilitate a broad
understanding of market pay rates. These sources include a custom group of industry peer companies agreed in conjunction with FW Cook. The custom peer group includes U.S. companies in related industries that roughly approximate
Dole plc in terms of size across a variety of metrics, including annual revenues, Adjusted EBITDA and capitalization. The custom peer group is shown below and comprises twenty companies in comparable industries and will be subject
to periodic review.
Campbell Soup
Casey’s General Stores
Conagra Brands
Darling Ingredients
Flowers Foods
Fresh Del Monte Produce
Grocery Outlet Holding
Ingredion
J.M. Smucker
Lamb Weston
Performance Food Group
Pilgrim’s Pride
Post
Seaboard
SpartanNash
Sprouts Farmers Market
TreeHouse Foods
United Natural Foods
US Foods Holding
Weis Markets
Fixed Salary
Fixed Salaries of named executive officers are reviewed annually by the Committee with regard to personal performance, Group performance and competitive market remuneration levels. Fixed Salaries of our named executive
officers for 2023 include an increase of 4% over fiscal year 2022 levels, except in the case of Ms. Devine, where her 2023 Fixed Salary was increased by €50,000, or 13%, reflecting her recent appointment as CFO in 2022.
Our named executive officers are eligible for annual non-equity incentive awards under the annual incentive plans in place in Dole. These awards, save in exceptional circumstances, are capped at 200% of an executive officer’s
Fixed Salary.
For 2023, the annual non-equity incentive awards for our named executive officers were determined based on the achievement of the approved Adjusted EBITDA performance budgetary goal for Dole under the Annual Incentive
Plan (“the API”), and those awards are referred to hereafter as the “API awards”.
59
Table of Contents
After determining the 2023 financial payout percentages, the Committee approved the following annual incentive cash payments. Amounts shown have, where relevant, been converted from euro into U.S. dollars. Translations from
euro into U.S. dollars were made at the rate of €1.00 to $1.08127, being the average mid-rate for 2023.
Name Target Incentive (1) ($) Financial Performance Rating (%) Total Incentive Payment (1) ($)
Carl McCann 637,108 166.67% 1,061,867
Rory Byrne 867,141 166.67% 1,445,263
Johan Lindén 834,190 166.67% 1,390,345
Jacinta Devine 302,756 166.67% 540,647
(1) Target Incentive and Total Incentive Payment for Ms. Devine reflect a once off reduction of €50,000 as part of the transitional adjustments made to her Fixed Salary in 2023.
We maintain employee profit sharing schemes for our Irish and U.K. employees, including our non-U.S. based named executive officers, under which the scheme trustees purchase shares in the market on behalf of the relevant
employees. The maximum purchase that may be made by the Dole plc Employee Profit Sharing Scheme on behalf of any employee in any year is capped at €12,700, and each of the executives is appropriated shares of Dole plc from the
scheme trust on the basis that the shares are not subject to vesting conditions and the executives have the benefit of all rights to the shares, except that the shares cannot be sold within two years of being appropriated to the executives.
In fiscal year 2023, a total of 3,340 ordinary shares in the Company were purchased by the trust at market value on behalf of the Messrs. McCann and Byrne and Ms. Devine under this scheme.
Long-term equity incentive awards assist us in recruiting and retaining individuals with ability and initiative by enabling such individuals to participate in our future success and aligning their interests with our interests and the
interests of our shareholders. In consideration of the benefits of long-term equity incentive awards, we adopted the Omnibus Plan, which became effective upon the completion of the Transaction and provides for a broad range of award
types that may be granted under the terms of the plan.
Fiscal year 2023 long-term incentive awards for the named executive officers were delivered entirely in the form of Restricted Stock Units (“RSUs”), 50% of which are subject to a market condition (the “RSUs with a market
condition”) and 50% of which are subject solely to time-based vesting (the “Time-Based RSUs”). For the RSUs with a market condition, the number of shares earned may range from 0% to 200% of the target number of RSUs with a
market condition granted based on share price for the performance cycle ending December 31, 2025. The Time-Based RSUs will vest 100% on December 31, 2025.
Claw-Back Policies
All awards granted under the Omnibus Plan shall be subject to the terms of any recoupment policy currently in effect or subsequently adopted by the board of directors or the Compensation Committee to implement Section 304 of
the Sarbanes-Oxley Act of 2002 or Section 10D of the Exchange Act or as the board of directors or the Compensation Committee otherwise deem appropriate (or with any amendment or modification of such recoupment policy adopted
by the Board or the Compensation Committee), to the extent that such award (whether or not previously exercised or settled) or the value of such award is required to be returned to the Company, pursuant to the terms of such recoupment
policy.
Further, subject to the terms of any recoupment policy, in the event the Company is required to prepare an accounting restatement of the Company’s financial statements due to the Company’s material non-compliance with any
financial reporting requirement under the federal securities laws, the Company shall recover any amount that a participant receives that exceeds the amount that otherwise would have been received had the award, including the annual
incentive plan award, been determined based on the restated financial statements.
60
Table of Contents
We have adopted a severance plan (the “Executive Severance Plan”) for our named executive officers, which was effective from the completion of the Transaction. Under the terms of the Executive Severance Plan, the named
executive officers would be eligible for severance benefits upon certain terminations of employment in connection with a change in control and also for lesser severance benefits upon certain terminations of employment not in connection
with a change in control.
We further describe the severance and change in control arrangements provided under the Executive Severance Plan under the “Potential Payments Upon Termination or Change in Control” section below.
Furthermore, if there is a takeover, merger or consolidation of us by, with or into another corporation or a sale of substantially all of our Ordinary shares (a “Corporate Transaction”) that results in a change in control (as defined in
the Omnibus Plan), and the outstanding awards under the Omnibus Plan are not assumed by the surviving company (or its parent company) or replaced with economically equivalent awards granted by the surviving company (or its
parent company), the Committee will cancel any outstanding awards that are not vested and non-forfeitable as of the consummation of such Corporate Transaction (unless the Committee accelerates the vesting of any such awards) and
with respect to any vested and non-forfeitable awards, the Committee may either (i) allow all grantees to exercise options within a reasonable period prior to the consummation of the Corporate Transaction and cancel any outstanding
options that remain unexercised upon consummation of the Corporate Transaction, or (ii) cancel any or all of such outstanding awards (including options) in exchange for a payment (in cash, or in securities or other property) in an
amount equal to the amount that the grantee would have received (net of the exercise price with respect to any options) if the vested awards were settled or distributed or such vested options were exercised immediately prior to the
consummation of the Corporate Transaction. If an exercise price of the option exceeds the amount payable per ordinary share in the Corporate Transaction and the option is not assumed or replaced by the surviving company (or its parent
company), such options will be cancelled without any payment to the grantee.
The following is summary of the terms of the Executive Severance Plan and does not purport to be complete and is qualified in its entirety by reference to the full text thereof, a copy of which was attached as Exhibit 10.19 to the
F-1 Filing. In the event a named executive officer experiences an involuntary termination of employment from the Company that constitutes a severance from employment as a direct result of a workforce reduction, elimination of
operations or job elimination, subject to the executive’s execution of a release of claims, the executive will be eligible for severance equal to the sum of (i) two weeks of the executive’s weekly salary for each year of the executive’s
service (pro-rated for partial years) and (ii) an additional number of weeks up to six weeks.
The executive will not be entitled to the severance pay described above if the executive continues to be employed for any period of time after the scheduled date of his or her involuntary termination or is offered, but does not
accept, a comparable position (as described in the Executive Severance Plan), with a successor or acquirer.
If the executive’s employment is terminated by the Company without “cause” or by the executive for “good reason” (as such terms are defined under the Executive Severance Plan) within twenty-four months following a “change
in control” (as defined under the Executive Severance Plan), then the executive will be eligible to receive, subject to the executive’s execution of a release of claims and in lieu of the severance benefits described above (i) a payment equal
to two times the sum of the executive’s base salary and target annual bonus, (ii) payment of a pro-rated annual bonus for the year in which the termination occurs, determined based on actual performance and (iii) twenty-four months’
continued participation in group health benefits or cash amounts in lieu thereof, as applicable.
Any severance benefits payable to our named executive officers under the Executive Severance Plan shall be reduced (but not below $0.00) by amounts otherwise payable to such executive under any other severance plan or
arrangement with or of the Company and also by the amount of statutory severance amount.
61
Table of Contents
The table below summarizes the compensation attributable to each of our named executive officers for the years 2023 and 2022. All amounts are shown in thousands.
Non-equity
Stock Incentive Plan All Other
Bonus Awards Stock Option Compensation Compensation
Name and Principal Position Year Fixed Salary ($) ($) (3) ($) Awards ($) (2) ($) (4) ($) Total ($)
Carl McCann 2023 910 — 1,082 — 1,062 — 3,054
Executive Chair, Dole plc 2022 847 — 1,030 — 395 — 2,272
Rory Byrne (5) 2023 991 189 1,546 — 1,445 201 4,372
Chief Executive Officer, Dole plc 2022 923 148 1,471 — 538 194 3,274
62
Table of Contents
As of December 31, 2023, our named executive officers held the following beneficial interests in stock options or other equity or equity-based grants under the Omnibus Plan.
(2) The market value of unearned shares is based on the December 31, 2023 closing share price of $12.29. The market value of unearned RSUs with a market condition assumes payout at target number of RSUs with a market condition.
Mr. McCann and Mr. Byrne have agreed to cap their pension entitlements in line with the provisions of the Irish Finance Acts 2006 and 2011, and where applicable, receive a supplementary, taxable, non-pensionable cash
allowance or a contribution to a defined contribution scheme in lieu of prospective pension entitlements. The actual cash allowances or contributions to a defined contribution scheme in lieu of the prospective pension entitlements
foregone for 2023 was $193,547 for Mr. Byrne. No payments were made to Mr. McCann for 2023. In the case of Messrs. McCann and Byrne, whose pension entitlements have been capped, pensions are calculated to provide for two-
thirds of the aggregate of such executive officers’ fees and basic pensionable salary to the date of opt out with benefits in respect of dependents continuing to accrue. The supplementary cash allowances have been reduced to allow for
increases in dependents’ benefits that accrued during the year.
As explained in more detail in Note 15 “Employee Benefit Plans” in the consolidated financial statements included herein, as part of its strategy to de-risk its exposure to defined benefit pension schemes, the Company during the
year made an Enhanced Transfer Offer (“ETV”) offer to Mr. Byrne to transfer his accumulated accrued benefits from the defined benefit pension scheme and instead receive a transfer value above the statutory minimum value to buyout
the obligations. As Mr. Byrne has reached his Personal Fund Threshold (“PFT”), the Company offered him a non- pensionable payment of $1.3 million. On acceptance of the offer, all associated defined benefit pension obligations in
respect of Mr. Byrne have been removed.
For 2023, Mr. Lindén is eligible to participate in a defined contribution 401(k) plan and a further defined contribution scheme. For contributions to the 401(k) plan, the Company generally matches employees’ contributions to the
401(k) plan up to 6% of eligible compensation, as well as a service based contribution of up to 2% based on eligible pay and years of service with the Company.
63
Table of Contents
Mr. Lindén is also eligible to participate in the non-qualified deferred compensation Excess Savings Plan (“ESP”), pursuant to which eligible employees can contribute up to 100% of eligible earnings (base salary and annual
incentive). This plan is a nonqualified savings plan that provides participants with the opportunity to contribute amounts on a deferred tax basis which are in excess of the limits that apply to the 401(k) Plan. The ESP is coordinated with
the 401(k) Plan so that, on a combined plan basis, participants may defer up to 100% of eligible earnings (generally, base salary and annual incentives) and will receive a company match of the first 6% of eligible earnings. There are no
investment options available under the ESP, instead amounts contributed to the ESP accrue interest at a fixed rate. Benefits under the ESP are paid in lump sum no earlier than July 1 of the plan year, immediately following the plan year in
which the participant terminates employment.
The total cash allowances or contributions made to the above schemes for Mr. Lindén in 2023 was $141,578.
Ms. Devine is eligible to participate in a defined contribution scheme, and the cash contributions paid into this scheme for Ms. Devine in 2023 were $95,152.
We use a combination of cash and equity based compensation to attract and retain qualified non-employee candidates to serve on the board of directors. In setting non-employee director compensation, we consider the significant
amount of time that directors expend in fulfilling their duties, as well as the skill sets each non-employee director brings as a member of the board of directors.
Specifically, commencing with the completion of the Transaction, and having taken into account the information gathered from the compensation review and the advice received from FW Cook, each non-employee director
member of the Dole plc board of directors is entitled to receive an annual cash retainer of $85,000 and an annual award of restricted stock units with a grant date value of $85,000, which vests in full on the one-year anniversary of the
grant date. In addition, each committee chair also receives an annual cash retainer of $10,000.
With the exception of travel expenses, non- employee directors are not eligible for pension benefits, non-qualified deferred compensation or any other cash, equity award or other benefit or fringe benefit.
The following table presents the individual compensation and benefits provided to our non-employee directors during the fiscal years ended December 31, 2023 and December 31, 2022 and are shown in U.S. dollars and thousands:
Name Year Fees Earned in Cash (1)($) Stock Awards (2) ($) Total Fees ($)
64
Table of Contents
C. Board practices.
Our Articles of Association provide that the number of directors will be not less than three and not more than fourteen. Our Board of Directors is composed of eleven members. Carl McCann serves as the Chair of the Board of
Directors. The term of each director’s service is as follows:
Director Independence
As a foreign private issuer, under the listing requirements and rules of the NYSE, we are not required to have independent directors on our Board of Directors, except that our audit committee is required to consist fully of
independent directors, subject to certain phase-in schedules. Our Board of Directors has determined that each of Timothy George, Imelda Hurley, Rose Hynes, Michael Meghen, Helen Nolan and Kevin Toland do not have a relationship
that would interfere with the exercise of independent judgment in carrying out the responsibilities of director and that each of these directors is “independent” as defined under NYSE rules.
We intend to comply with the director independence rules generally applicable to U.S. domestic companies listed on the NYSE. We may in the future decide to use the foreign private issuer exemption with respect to some or all of
the NYSE corporate governance rules.
None of our directors have any service contracts with the Company or its subsidiaries; however, our executive directors have employment relationships that provide benefits on termination of employment, as described further in
“Item 6B. Compensation.”
Audit Committee
• reviews the audit plans and findings of our independent registered public accounting firm and our internal audit and risk review staff, as well as the results of regulatory examinations, and tracks management’s corrective action
plans where necessary;
• reviews our financial statements, including any significant financial items and/or changes in accounting policies, with our senior management and independent registered public accounting firm;
• reviews our financial risk and control procedures, compliance programs and significant tax, legal and regulatory matters; and
65
Table of Contents
• has the sole discretion to annually appoint our independent registered public accounting firm, evaluate its independence and performance and set clear hiring policies for employees or former employees of the independent
registered public accounting firm.
The members of the Audit Committee are Kevin Toland (Chair), Imelda Hurley and Helen Nolan, all of whom meet the definition of “independent director” for purposes of serving on the audit committee under Rule 10A-3 of the
Exchange Act and the NYSE corporate governance standards.
• reviews the performance of our Board of Directors and makes recommendations to our Board of Directors regarding the selection of candidates, qualification and competency requirements for service on our Board of Directors
and the suitability of proposed nominees as directors;
• advises our Board of Directors with respect to the corporate governance principles applicable to us;
The members of the Nomination and Corporate Governance Committee are Rose Hynes (Chair), Michael Meghen and Timothy George.
Compensation Committee
• reviews, modifies and approves (or if it deems appropriate, makes recommendations to the full Board of Directors regarding) our overall compensation strategy and policies;
• reviews and approves the salaries, benefits and equity incentive grants of executive directors;
• reviews and approves corporate goals and objectives relevant to executive officer compensation, evaluates executive officer performance in light of those goals and objectives, and determines executive officer compensation
based on that evaluation;
• reviews and approves the terms of any employment agreements, severance arrangements, change in control protections and any other compensatory arrangements for our executive officers; and
The members of the Compensation Committee are Michael Meghen (Chair), and Kevin Toland, both of whom are “non-employee” directors as defined in Rule 16b-3(b)(3) under the Exchange Act.
None of the members of the Compensation Committee is currently, or has been at any time, one of the Company’s officers or employees. None of the Company’s executive officers currently serves, or has served during the last
year, as a member of the Board of Directors or compensation committee of any entity that has one or more executive officers serving as a member of the Company’s Board of Directors or compensation committee.
Indemnification
We maintain directors’ and officers’ liability insurance. Our Articles of Association include provisions indemnifying our directors and officers to the fullest extent permitted by law. We have entered into indemnification agreements
with our directors to provide our directors and certain of their affiliated parties with additional indemnification and related rights.
66
Table of Contents
D. Employees.
Employees
In fiscal year 2023, we had approximately 34,078 full-time employees on average worldwide. The following table describes our average employees by reportable segment, including the Fresh Vegetables division, for the years
ended December 31, 2023, December 31, 2022, and December 31, 2021:
Approximately 30% of our full-time employees work under collective bargaining agreements, some of which are in the process of being renegotiated. These agreements are subject to periodic negotiation and renewal. We believe
that our relations with our employees are generally positive.
Diversity and Inclusion. We recognize that one of our most important assets is our people. We value the unique perspectives that a workforce with diverse cultures, ages, genders and ethnicities brings to our company. We are
committed to maintaining a positive and diverse workplace and supplier base that fosters open dialogue and recognizes the importance of individual and cultural differences. We have a zero-tolerance policy on discrimination and
harassment and have several systems under which employees can report incidents confidentially or anonymously and without fear of reprisal.
It is our philosophy and practice to provide employment opportunities without regard to sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation or any factor prohibited by applicable law or Dole’s policies.
Decisions related to recruitment, promotion, compensation, termination and other aspects of the employment relationship are based upon job-related qualifications, skills and experience.
Engagement, Opportunities and Benefits. Education and continuous development are cornerstones of our approach to talent management. We encourage and support the growth and development of our employees and, wherever
possible, seek to fill positions by promotion and transfer from within the organization. Through operating an annual international Key Talent Program, we identify, encourage and develop emerging high-performing talent across the
group. In addition, training is offered to managers to support the development of key management skills. General talent development is managed predominantly at the divisional and site level.
Safety and Health. The safety, health and welfare of all of our employees, whatever their role, is paramount to our company. Farms and facilities are regularly audited to check for employee welfare, such as ensuring that someone
at the site is clearly responsible for employees’ health, safety and welfare.
Community Outreach. Health, education and entrepreneurship are the key focus areas for our community development efforts. In the Americas, our farms and facilities support community initiatives that have been nominated by
employees or where there is a clear local need. Nearly 20 years ago, Dole Food Company and a group of independent growers in Ecuador set up a foundation with a clear purpose: find ways to improve the lives of workers and
communities in and around the company’s farms and facilities. The Dalé Foundation continues its work to fulfill that mission today in both Ecuador and Peru. In 2000, the foundation adapted mobile medical units with the objective of
bringing health to the farthest places where our workers live. They also have been used to offer emergency medical interventions in the wake of events such as floods. Since 2019, there are a total of 18 medical facilities in operation, five
of which are mobile. This service benefits not only agricultural workers and their families, but also others in the community who need medical assistance. The foundation has established two schools since its founding and supports others
by providing infrastructure improvements and health programs for students. Another of the foundation’s key programs is called Training for Entrepreneurship. The objective is to train people so that they can establish a small business and
thus improve family income and, at the same time, improve their quality of life. The foundation also offers workshops and talks on topics that are relevant to communities.
We also actively contribute to the communities in which we trade, supporting multiple initiatives across the world by educating, inspiring and empowering people to lead healthier lives.
67
Table of Contents
E. Share ownership.
The interests of the named executive officers and non-employee directors of Dole plc in the issued share capital of the Company as of February 29, 2024 was as follows. For further information refer to “Item 6B. Compensation”.
We recognize the importance of aligning our executive officers interests with those of our shareholders through the building of executive shareholdings in the Company. Dole plc has adopted shareholding guidelines, whereby our
named executive officers will be required, under normal circumstances, to acquire a holding of shares in Dole plc equal to 100% of their Fixed Salary, typically over a five-year period, commencing on the date of their appointment to the
Board.
As of December 31, 2023, all of our named executive officers with the exception of Ms. Devine, who has been recently appointed to the Board had satisfied the required shareholding threshold.
Not applicable.
68
Table of Contents
A. Major shareholders.
PRINCIPAL SHAREHOLDERS
As of February 29, 2024, Dole plc has 94,929,179 Ordinary shares outstanding. Dole’s Ordinary shares are listed and can be traded on the NYSE in U.S. dollars. Such shares may be held in the following two ways:
• beneficial interests in Dole’s Ordinary shares that are traded on the NYSE are held through the book-entry system provided by The Depository Trust Company (“DTC”) and are registered in the register of shareholders in the
name of Cede & Co., as DTC’s nominee; and
• in certificated form.
All of Dole’s Ordinary shares that are held in a securities depository are held at DTC. As of February 29, 2024, there were 133 record holders in the U.S. (i.e., banks or brokers) holding approximately 70,942,738 of Dole’s
outstanding Ordinary shares through their accounts at DTC. Ordinary shares held through DTC may be beneficially owned by holders within or outside of the U.S. Also as of the same date, there were 3,273 record holders holding
approximately 10,656,518 of Dole’s outstanding Ordinary shares whose addresses on record with our transfer agent indicate that they are residents of Ireland.
The following table sets forth each person known by us to beneficially own more than 5% of our Ordinary shares as of February 29, 2024. Our major shareholders do not have different voting rights. Each of the shareholders listed
has sole voting and investment power with respect to the shares beneficially owned by the shareholder, unless noted otherwise, subject to community property laws where applicable.
Please see “Item 6B. Compensation - Potential Payments Upon Termination or Change in Control” for information regarding change in control arrangements.
Other than as described below, there have not been, nor are there any currently proposed, transactions or series of similar transactions meeting these criteria to which we have been or will be a party, other than compensation
arrangements, which are described where required under “Item 6B. Compensation.”
69
Table of Contents
The C&C Parties holding Ordinary shares received in connection with the IPO and the Merger are entitled to certain registration rights pursuant to a registration rights agreement (the “Registration Rights Agreement”) entered into
concurrently with the consummation of the Transaction. Pursuant to the Registration Rights Agreement, the C&C Parties are entitled to make long form and short form demands, subject to the conditions therein, that we register such
Ordinary shares. In addition, the C&C Parties have certain “piggy-back” registration rights with respect to registration statements filed hereafter. If exercised, these registration rights would enable holders to transfer these securities
without restriction under the Securities Act, when the applicable registration statement is declared effective. We will bear the expenses incurred in connection with the filing of any such registration statements. The Registration Rights
Agreement also contains customary indemnification and contribution provisions.
Our Articles of Association provide that we will indemnify our directors and officers to the fullest extent permitted by law. See “Indemnification” in “Item 6.C. Board Practices” for further detail.
During the normal course of business, Dole has sales to and purchases from unconsolidated affiliates. Refer to Note 22 “Investments in Unconsolidated Affiliates” in the consolidated financial statements included herein for further
detail.
For further discussion on other significant related party transactions we entered into during the years ended December 31, 2023, December 31, 2022 and December 31, 2021, see Note 20 “Related Party Transactions” in the
consolidated financial statements included herein for further detail.
Natalia Martinez, the spouse of Mr. Byrne, the Company’s Chief Executive Officer, is the Finance Director of EurobananCanarias S.A., one of the Company’s subsidiaries. Ms. Martinez has been an employee of the Group since
1994. Ms. Martinez’s total compensation is commensurate with the amounts paid to similarly situated employees.
David McCann, the brother of the Company’s Executive Chair Mr. Carl McCann, serves as an advisor to the Company through services rendered to Dole Management Services Limited, one of the Company’s subsidiaries. Mr.
David McCann’s total compensation is commensurate with the amounts paid to similarly situated employees.
Our Board of Directors has adopted a written related person transaction policy that sets forth certain policies and procedures for the review and approval or ratification of related person transactions, which comprise any transaction,
arrangement or relationship in which Dole plc or any of its subsidiaries was, is or will be a participant, the amount of which involved exceeds $120,000, and in which any related person had, has or will have a direct or indirect material
interest. A “related person” for purposes of such policy includes: (i) any person who is, or at any time during the applicable period was, one of our executive officers or one of the directors; (ii) any person who is known by us to be the
beneficial owner of more than 5% of the Ordinary shares; (iii) any immediate family member of any of the foregoing persons (which means any child, stepchild, parent, stepparent, spouse, sibling, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law or sister-in-law) of a director, executive officer or a beneficial owner of more than 5% of our voting stock and any person (other than a tenant or employee) sharing the household of such director, executive
officer or beneficial owner of more than 5% of the Ordinary shares; and (iv) any firm, corporation or other entity in which any of the foregoing persons is a partner or principal or in a similar position or in which such person has a 10% or
greater beneficial ownership interest.
Not applicable.
Refer to “Item 18. Financial Statements” for our Consolidated Financial Statements as of December 31, 2023 and December 31, 2022 and for the years ended December 31, 2023, December 31, 2022 and December 31, 2021 and
report of our independent registered public accounting firm included herein.
Export Sales
In the year ended December 31, 2023, the amount of sales outside of Ireland was $8.9 billion, which represents 95% of our total sales and includes $1.1 billion of sales from our Fresh Vegetables division. Refer to Note 5
“Revenue” included in the consolidated financial statements included herein for further detail.
70
Table of Contents
See Note 19 “Contingencies” in the consolidated financial statements included herein for additional information regarding legal proceedings.
Dividend Policy
Dole plc’s principal capital allocation priorities are reinvesting into the existing business, pursuing external growth opportunities, and returning cash to the holders of its Ordinary shares, including in the form of cash dividends.
Total Produce has a long history of paying regular interim and final cash dividends to its shareholders each year. Dole plc intends to pay quarterly cash dividends on our Ordinary shares at the discretion of our Board of Directors and
subject to earnings, financial condition, operating results, capital requirements and other relevant factors consistent with applicable law.
Any declaration and payment of future dividends to holders of our Ordinary shares, however, will be at the sole discretion of our Board of Directors and will depend on many factors, including our financial condition, earnings,
capital requirements, level of indebtedness, statutory and contractual restrictions applicable to the payment of dividends and other considerations that our Board of Directors deem relevant. The declaration, amount and timing of payment
of any future dividends will therefore be subject to the assessment of these factors at the time by our Board of Directors. Because we are a holding company and have no direct operations, we will only be able to pay dividends from our
available cash on hand and any funds we receive from our subsidiaries.
Any future determination to pay dividends will also be subject to applicable laws, including the Irish Companies Act, which requires, among other things, Irish companies to have profits available for distribution (known as
distributable reserves) equal to or greater than the amount of the proposed dividend.
Our future ability to pay cash dividends on our shares may also be limited by the terms of our current and any future debt or preferred securities. In addition, certain of our debt agreements, including the Credit Agreement, may
limit our ability and the ability of certain of our subsidiaries to pay dividends.
B. Significant Changes.
Except otherwise disclosed within this Annual Report on Form 20-F, no significant change has occurred since December 31, 2023.
Our Ordinary shares are traded on the NYSE under the symbol “DOLE” and will not be listed on any other exchange.
B. Plan of distribution.
Not applicable.
C. Markets.
D. Selling shareholders.
Not applicable.
E. Dilution.
Not applicable.
Not applicable.
71
Table of Contents
A. Share capital.
Not applicable.
The section titled “Description of Share Capital” in the F-1 Filing is incorporated herein by reference.
C. Material contracts.
We have not entered into any material contracts other than in the ordinary course of business and other than those described in “Item 7. Major Shareholders and Related Party Transactions” or elsewhere in this annual report on
Form 20-F.
D. Exchange controls.
Under the laws of Ireland, there are currently no Irish restrictions on the export or import of capital, including foreign exchange controls or restrictions that affect the remittance of dividends (other than dividend withholding tax
where an exemption may apply) to non-resident holders of our Ordinary shares.
E. Taxation.
Scope
The following is a summary of the anticipated material Irish tax consequences to Non-Irish Holders (as defined below) of the acquisition, ownership and disposal of our Ordinary shares. The summary is based upon Irish tax laws
and the practice of the Revenue Commissioners of Ireland (“Irish Revenue”) in effect on the date of this filing. Changes in law and/or administrative practice may result in a change in the tax consequences described below, possibly with
retrospective effect.
A “Non-Irish Holder” is an individual who beneficially owns their Ordinary shares, that is neither a resident nor ordinarily resident in Ireland for Irish tax purposes and does not hold their Ordinary shares, in connection with a trade
carried on by such person through an Irish branch or agency.
This summary does not constitute tax advice and is intended only as a general guide. The summary is not exhaustive, and shareholders should consult their tax advisors about the Irish tax consequences (and tax consequences under
the laws of other relevant jurisdictions) of the acquisition, ownership and disposal of our Ordinary shares. The summary applies only to Non-Irish Holders who hold their Ordinary shares as capital assets and does not apply to other
categories of Non-Irish Holders, such as dealers in securities, trustees, insurance companies, collective investment schemes and Non-Irish Holders who acquired, or are deemed to have acquired, their Ordinary shares by virtue of an Irish
office or employment (performed or carried on to any extent in Ireland).
The current rate of tax on chargeable gains (where applicable) in Ireland is 33%.
Non-Irish Holders will not be within the territorial scope of a charge to Irish CGT on a disposal of their Ordinary shares; provided that such Ordinary shares neither (a) were used in or for the purposes of a trade carried on by such
Non-Irish Holder through an Irish branch or agency, nor (b) were used, held or acquired for use by or for the purposes of an Irish branch or agency.
72
Table of Contents
Stamp Duty
The rate of stamp duty (where applicable) on transfers of shares of Irish incorporated companies is 1% of the greater of the price paid or market value of the shares acquired. Where Irish stamp duty arises, it is generally a liability
of the transferee. However, in the case of a gift or transfer at less than fair market value, all parties to the transfer are jointly and severally liable.
Irish stamp duty may be payable in respect of transfers of our Ordinary shares, depending on the manner in which the Ordinary shares are held. The Company has entered into arrangements with DTC to allow the Ordinary shares
to be settled through the facilities of DTC.
Under Irish tax legislation, the transfer of ordinary shares effected by means of the transfer of book-entry interests in DTC is not subject to Irish stamp duty.
A transfer of our Ordinary shares where any party to the transfer holds such Ordinary shares outside of DTC may be subject to Irish stamp duty. In such circumstances, while the payment of Irish stamp duty is primarily a legal
obligation of the transferee, when shares are purchased on the NYSE, the purchaser will require the stamp duty to be borne by the transferor.
Holders of our Ordinary shares wishing to transfer their Ordinary shares into (or out of) DTC may do so without giving rise to Irish stamp duty, provided that:
• there is no change in the beneficial ownership of such shares as a result of the transfer; and
• the transfer into (or out of) DTC is not effected in contemplation of a sale of such shares by a beneficial owner to a third party.
Due to the potential Irish stamp charge on transfers of our Ordinary shares held outside of DTC, it is strongly recommended that shareholders hold our Ordinary shares through DTC (or through a broker who in turn holds such
shares through DTC).
Distributions made by the Company will, in the absence of one of many exemptions, be subject to DWT, currently at a rate of 25%.
For DWT and Irish income tax purposes, a distribution includes any distribution that may be made by the Company to holders of our Ordinary shares, including cash dividends, non-cash dividends and additional shares taken in
lieu of a cash dividend. Where an exemption from DWT does not apply in respect of a distribution made to a holder of our Ordinary shares, the Company is responsible for withholding DWT prior to making such distribution.
General Exemptions
Irish domestic law provides that a non-Irish resident holder of our Ordinary shares is not subject to DWT on distributions received from the Company if such holder of our Ordinary shares is beneficially entitled to the distribution
and is either:
• a person (not being a company) resident for tax purposes in a Relevant Territory (including the U.S.) and is neither resident nor ordinarily resident in Ireland;
• a company resident for tax purposes in a Relevant Territory, provided such company is not under the control, whether directly or indirectly, of a person or persons who is or are resident in Ireland;
• a company that is controlled, directly or indirectly, by persons resident in a Relevant Territory and who is or are (as the case may be) not controlled by, directly or indirectly, persons who are not resident in a Relevant Territory;
73
Table of Contents
• a company whose principal class of shares (or those of its 75% direct or indirect parent) is substantially and regularly traded on a stock exchange in Ireland, on a recognized stock exchange either in a Relevant Territory or on
such other stock exchange approved by the Irish Minister for Finance; or
• a company that is wholly owned, directly or indirectly, by two or more companies where the principal class of shares of each of such companies is substantially and regularly traded on a stock exchange in Ireland, a recognized
stock exchange in a Relevant Territory or on such other stock exchange approved by the Irish Minister for Finance
• and provided, in all cases noted above (but subject to “Ordinary Shares Held by U.S. Resident Shareholders” below), the Company or, in respect of our Ordinary shares held through DTC, any qualifying intermediary appointed
by the Company, has received from the holder of such Ordinary shares, where required, the relevant DWT forms prior to the payment of the distribution. In practice, in order to ensure sufficient time to process the receipt of
relevant DWT forms, the holders of our Ordinary shares, where required, should furnish the relevant DWT form to:
• its broker (and the relevant information is further transmitted to any qualifying intermediary appointed by the Company) before the record date for the distribution (or such later date before the distribution payment date
as may be notified to the holders of our Ordinary shares by the broker) if its Ordinary shares are held through DTC; or
• the Company’s transfer agent before the record date for the distribution if its Ordinary shares are held outside of DTC.
Links to the various DWT Forms are available at: http://www.revenue.ie/en/tax/dwt/forms/index.html. The information on such website does not constitute a part of, and is not incorporated by reference into, this filing.
For non-Irish resident holders of our Ordinary shares that cannot avail themselves of one of Ireland’s domestic law exemptions from DWT, it may be possible for such holder of our Ordinary shares to rely on the provisions of a
double tax treaty to which Ireland is party to reduce the rate of DWT. The company will be responsible for withholding any taxes required if the payee has not provided proper documentation that they are exempt from such withholding
tax.
Distributions paid in respect of our Ordinary shares that are owned by a U.S. resident and held through DTC will not be subject to DWT, provided the address of the beneficial owner of such Ordinary shares in the records of the
broker holding such Ordinary shares is in the U.S. (and such broker has further transmitted the relevant information to a qualifying intermediary appointed by the Company). It is strongly recommended that such holders of our Ordinary
shares ensure that their information is properly recorded by their brokers (so that such brokers can further transmit the relevant information to a qualifying intermediary appointed by the Company).
If any holder of our Ordinary shares that is resident in the U.S. receives a distribution from which DWT has been withheld, the holder of such Ordinary shares should generally be entitled to apply for a refund of such DWT from
the Irish Revenue, provided the holder of such Ordinary shares is beneficially entitled to the distribution.
Ordinary shares Held by Residents of Relevant Territories Other Than the U.S.
Holders of our Ordinary shares who are residents of Relevant Territories, other than the U.S., must satisfy the conditions of one of the exemptions referred to above under the heading “General Exemptions,” including the
requirement to furnish valid DWT forms, in order to receive distributions without suffering DWT. If such holders of our Ordinary shares hold their Ordinary shares through DTC, they must provide the appropriate DWT forms to their
brokers (so that such brokers can further transmit the relevant information to a qualifying intermediary appointed by the Company) before the record date for the distribution (or such later date before the distribution payment date as may
be notified to holders of our Ordinary shares by the broker). If such holders of our Ordinary shares hold their Ordinary shares outside of DTC, they must provide the appropriate DWT forms to the Company’s transfer agent before the
record date for the distribution. It is strongly recommended that such holders of our Ordinary shares complete the appropriate DWT forms and provide them to their brokers or the Company’s transfer agent, as the case may be, as soon as
possible after receiving their Ordinary shares.
If any holder of our Ordinary shares who is resident in a Relevant Territory receives a distribution from which DWT has been withheld, the holder of such Ordinary shares may be entitled to a refund of DWT from the Irish
Revenue provided the holder of such shares is beneficially entitled to the distribution.
74
Table of Contents
Holders of our Ordinary shares that do not fall within any of the categories specifically referred to above may nonetheless fall within other exemptions from DWT. If any holders of our Ordinary shares are exempt from DWT, but
receive distributions subject to DWT, such holders of Ordinary shares may apply for refunds of such DWT from the Irish Revenue.
Distributions paid in respect of our Ordinary shares held through DTC that are owned by a partnership formed under the laws of a Relevant Territory and where all the underlying partners are resident in a Relevant Territory will be
entitled to exemption from DWT if all of the partners complete the appropriate DWT forms and provide them to their brokers (so that such brokers can further transmit the relevant information to a qualifying intermediary appointed by
the Company) before the record date for the distribution (or such later date before the distribution payment date as may be notified to the holders of our Ordinary shares by the broker). If any partner is not a resident of a Relevant
Territory, no part of the partnership’s position is entitled to exemption from DWT.
Qualifying Intermediary
The Company has put in place an agreement with an entity that is recognized by the Irish Revenue as a “qualifying intermediary,” which provides for certain arrangements relating to distributions in respect of our Ordinary shares
that are held through DTC, which are referred to as the “Deposited Securities.” The agreement provides that the qualifying intermediary shall distribute or otherwise make available to Cede & Co., as nominee for DTC, any cash dividend
or other cash distribution with respect to the Deposited Securities after the Company delivers or causes to be delivered to the qualifying intermediary the cash to be distributed.
The Company will rely on information received directly or indirectly from its qualifying intermediary, brokers and its transfer agent in determining where holders of our Ordinary shares reside, whether they have provided the
required U.S. tax information and whether they have provided the required DWT forms. Holders of our Ordinary shares that are required to file DWT forms in order to receive distributions free of DWT should note that such forms are
generally valid, subject to a change in circumstances, until December 31 of the fifth year after the year in which such forms were completed.
Irish income tax may arise for certain persons in respect of distributions received from Irish resident companies.
A Non-Irish Holder that is entitled to an exemption from DWT will generally have no Irish income tax or universal social charge liability on a distribution from the Company. A Non-Irish Holder that is not entitled to an exemption
from DWT, and therefore is subject to DWT, generally will have no additional Irish income tax liability or liability to universal social charge. The DWT deducted by the Company discharges the Irish income tax liability and liability to
universal social charge.
CAT comprises principally gift tax and inheritance tax on property situated in Ireland for CAT purposes or otherwise within the territorial scope of CAT. CAT could apply to a gift or inheritance of our Ordinary shares because our
Ordinary shares are regarded as property situated in Ireland for CAT purposes. The person who receives the gift or inheritance has primary liability for CAT.
CAT is currently levied at a rate of 33% on the value of any taxable gift or inheritance above certain tax-free thresholds. The appropriate tax-free threshold depends upon (1) the relationship between the donor and the donee and (2)
the aggregation of the values of previous taxable gifts and inheritances received by the donee from persons within the same group threshold. Gifts and inheritances passing between spouses are exempt from CAT, as are gifts to certain
charities. Children have a lifetime tax-free threshold of €335,000 in respect of taxable gifts or inheritances received from their parents. There is also a “small gift exemption” from CAT whereby the first €3,000 of the taxable value of all
taxable gifts taken by a donee from any one donor, in each calendar year, is exempt from CAT and is also excluded from any future aggregation. This exemption does not apply to an inheritance.
THE IRISH TAX CONSIDERATIONS SUMMARIZED ABOVE ARE FOR GENERAL INFORMATION ONLY AND ARE NOT INTENDED TO PROVIDE ANY DEFINITIVE TAX REPRESENTATIONS TO
HOLDERS. EACH SHAREHOLDER SHOULD CONSULT HIS OR HER TAX ADVISOR AS TO THE PARTICULAR CONSEQUENCES THAT MAY APPLY TO SUCH SHAREHOLDER.
75
Table of Contents
The following discussion is a summary of U.S. federal income tax considerations generally applicable to the ownership and disposition of our Ordinary shares by a U.S. Holder (as defined below) that acquires our Ordinary shares
and holds our Ordinary shares as “capital assets” (generally, property held for investment) under the Code. This discussion is based upon existing U.S. federal tax law, which is subject to differing interpretations or change, possibly with
retroactive effect, and there can be no assurance that the IRS or a court will not take a contrary position. This discussion, moreover, does not address the U.S. federal estate, gift or other non-income tax considerations, alternative
minimum tax, the Medicare tax on certain net investment income, or any state, local or non-U.S. tax considerations, relating to the ownership or disposition of our Ordinary shares. The following summary does not address all aspects of
U.S. federal income taxation that may be important to particular investors in light of their individual circumstances or to persons in special tax situations such as:
• insurance companies;
• pension plans;
• broker-dealers;
• holders who acquire their Ordinary shares pursuant to any employee share option or otherwise as compensation;
• investors that will hold Ordinary shares as part of a straddle, hedge, conversion, constructive sale or other integrated transaction for U.S. federal income tax purposes;
• investors that have a functional currency other than the U.S. dollar;
• persons that actually or constructively own Ordinary shares representing 10% or more of our capital stock (by vote or value); or
• partnerships or other entities or arrangements taxable as partnerships for U.S. federal income tax purposes, or persons holding Ordinary shares through such entities, all of whom may be subject to tax rules that differ significantly
from those discussed below.
Each U.S. Holder is urged to consult its tax advisor regarding the application of U.S. federal taxation to its particular circumstances, and the state, local, non-U.S. and other tax considerations of the ownership and disposition of our
Ordinary shares.
Unless otherwise indicated, this discussion assumes that we are not, and will not become, a passive foreign investment company (“PFIC”), for U.S. federal income tax purposes. See “Passive Foreign Investment Company
Considerations” below.
General
For purposes of this discussion, a “U.S. Holder” is a beneficial owner of our Ordinary shares that is, for U.S. federal income tax purposes:
• a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) created in, or organized under the law of the U.S. or any state thereof or the District of Columbia;
76
Table of Contents
• an estate, the income of which is includible in gross income for U.S. federal income tax purposes regardless of its source; or
• a trust, (i) the administration of which is subject to the primary supervision of a U.S. court and which has one or more U.S. persons who have the authority to control all substantial decisions of the trust or (ii) that has otherwise
validly elected to be treated as a U.S. person under the Code.
Dividends
Any cash distributions (including the amount of any Irish tax withheld) paid on our Ordinary shares out of our current or accumulated earnings and profits, as determined under U.S. federal income tax principles, will generally be
includible in the gross income of a U.S. Holder as dividend income on the day actually or constructively received by the U.S. Holder. Because we do not intend to determine our earnings and profits on the basis of U.S. federal income tax
principles, the full amount of any distribution we pay will generally be treated as a “dividend” for U.S. federal income tax purposes. Dividends received on our Ordinary shares will not be eligible for the dividends received deduction
generally allowed to corporations. Dividends received by individuals and certain other non-corporate U.S. Holders may be subject to tax at the lower capital gain tax rate applicable to “qualified dividend income,” provided that certain
conditions are satisfied, including that (i) (A) our Ordinary shares on which the dividends are paid are readily tradable on an established securities market in the U.S., or (B) we are eligible for the benefits of the United States-Ireland
income tax treaty (the “Treaty”), (ii) we are neither a PFIC nor treated as such with respect to such a U.S. Holder for the taxable year in which the dividend was paid and the preceding taxable year (see “Passive Foreign Investment
Company Considerations” below), and (iii) certain holding period requirements are met. We expect our Ordinary shares to continue to be readily tradable on an established securities market in the U.S., although there can be no assurance
in this regard. Additionally, we expect to be eligible for the benefits of the Treaty. If we are eligible for such benefits, dividends we pay on our Ordinary shares, regardless of whether such shares are considered readily tradable on an
established securities market in the U.S., would be eligible for the reduced rates of taxation described in this paragraph, provided the other conditions described above are satisfied. The Company will be responsible for withholding any
taxes required if the payee has not provided proper documentation that they are exempt from such withholding tax.
Dividends paid on our Ordinary shares will generally be treated as income from foreign sources and will generally constitute passive category income for U.S. foreign tax credit purposes. Depending on the U.S. Holder’s individual
facts and circumstances, a U.S. Holder may be eligible, subject to a number of complex limitations, to claim a foreign tax credit in respect of any nonrefundable foreign withholding taxes imposed on dividends received on our Ordinary
shares. A U.S. Holder who does not elect to claim a foreign tax credit for foreign taxes withheld may instead claim a deduction, for U.S. federal income tax purposes, in respect of such withholding, but only for a year in which such
holder elects to do so for all creditable foreign income taxes. The rules governing the foreign tax credit are complex and their outcome depends in large part on the U.S. Holder’s individual facts and circumstances. Accordingly, U.S.
Holders are urged to consult their tax advisors regarding the availability of the foreign tax credit under their particular circumstances.
A U.S. Holder will generally recognize capital gain or loss upon the sale or other disposition of our Ordinary shares in an amount equal to the difference between the amount realized upon the disposition and the holder’s adjusted
tax basis in such Ordinary shares. Any capital gain or loss will be long-term if the Ordinary shares have been held for more than one year. Long-term capital gain of individuals and certain other non-corporate U.S. Holders will generally
be eligible for a reduced rate of taxation. The deductibility of a capital loss may be subject to limitations. U.S. Holders are urged to consult their tax advisors regarding the tax consequences if a non-U.S. tax is imposed on a disposition of
our Ordinary shares, including the availability of the foreign tax credit under their particular circumstances.
A non-U.S. corporation, such as our company, will be classified as a PFIC for any taxable year if either (i) at least 75% of its gross income for such year consists of certain types of “passive” income, or (ii) at least 50% of the value
of its assets (generally determined on the basis of a quarterly average) during such year is attributable to assets that produce passive income or are held for the production of passive income. Based on the current and anticipated value of
our assets and composition of our income and assets, we do not presently expect to be a PFIC for the current taxable year or the foreseeable future. However, while we do not expect to be or become a PFIC, no assurance can be given in
this regard because the determination as to whether we are a PFIC for any taxable year is a fact-intensive determination that depends, in part, upon the composition and classification of our income and assets, and cannot be made until
after the end of a taxable year.
77
Table of Contents
If we are classified as a PFIC in any year during which a U.S. Holder owns our Ordinary shares, certain adverse tax consequences could apply to such U.S. Holder. Certain elections may be available (including a mark-to-market
election) to U.S. Holders that may mitigate some of those adverse consequences. You should consult your tax advisors regarding the U.S. federal income tax consequences of owning and disposing of our Ordinary shares if we are or
become a PFIC.
A U.S. Holder may be required to file Form 926 (or similar form) with the IRS in certain circumstances. A U.S. Holder who fails to file any such required form could be required to pay a penalty equal to 10% of the gross amount
paid for the Ordinary shares (subject to a maximum penalty of $100,000, except in cases of intentional disregard). U.S. Holders should consult their tax advisers with respect to this or any other reporting requirement that may apply to an
acquisition of our Ordinary shares.
Not applicable.
G. Statement by experts
Not applicable.
H. Documents on display
The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC, including the Company, at http://www.sec.gov. The address
of the SEC’s website is provided solely for information purposes and is not intended to be an active link.
We also make our periodic reports as well as other information filed with or furnished to the SEC available through our website, at https://www.doleplc.com/investors, as soon as reasonably practicable after those reports and other
information are electronically filed with or furnished to the SEC. The information on our website is not incorporated by reference in this document.
I. Subsidiary Information
Not applicable.
Not applicable.
We are exposed to market risks from adverse changes in foreign exchange rates, interest rates and commodity prices, which may adversely affect our results of operations and financial condition. We seek to minimize these risks
through our regular operating and financing activities and through entering into derivative contracts to reduce unanticipated fluctuations in earnings and cash flows that may arise from variations in foreign currency exchange rates, bunker
fuel prices and interest rates. Dole does not utilize derivatives for trading or other speculative purposes and our utilization of financial instruments in managing market risk exposures is consistent with the prior year.
Within its operating entities, Dole has transaction risk as our sales and operations are denominated in both the functional currency of the operating entities and in a variety of other major currencies. We also source the majority of
our products in locations that are foreign to the purchasing entity and accordingly are exposed to changes in exchange rates between the functional currency of the operating entity and currencies in these sourcing locations. Our exposure
to exchange rate fluctuations in these sourcing locations is partially mitigated by entering into U.S. dollar denominated contracts for third-party purchased product and most other major supply agreements, including shipping contracts.
However, we are still exposed to those costs that are denominated in local currencies, primarily the Honduran lempira, Costa Rican Colón, Chilean peso and Mexican peso.
78
Table of Contents
As part of Dole’s risk management strategy, we use derivative instruments to hedge certain foreign currency exchange rate exposures. Our objective is to offset gains and losses resulting from these exposures with losses and gains
on the derivative contracts used to hedge them, thereby reducing volatility of earnings. We use foreign currency exchange forward contracts to reduce our risk related to anticipated dollar revenue transactions and forecasted operating
expenses. See Note 17 “Derivative Financial Instruments” to the consolidated financial statements included herein for additional information regarding our derivative instruments and hedging activities.
As of December 31, 2023, the notional amounts of Dole’s foreign currency hedge portfolio were as follows:
Notional Amount
United States dollar $29.6 million
Euro €357.4 million
British pound sterling £9.0 million
Swedish krona SEK22.0 million
Chilean peso CLP$25.6 billion
These values include derivative instruments that are designated and qualify for hedge accounting as well as economic or fair hedges. The fair value of all foreign currency derivatives that qualify for hedge accounting as of
December 31, 2023 was an asset of $1.1 million and a liability of $5.5 million, and for the year ended December 31, 2023, we recorded realized losses of $8.5 million and unrealized gains of $0.8 million. We currently estimate that a 10%
weakening of the U.S. dollar would have increased unrealized losses to $29.0 million, assuming that each exchange rate would change in the same direction relative to the U.S. dollar.
The fair value of other foreign currency cash flow derivatives that do not qualify for hedge accounting as of December 31, 2023 was an asset of $0.1 million and a liability of $0.3 million, and for the year ended December 31,
2023, we recorded realized gains of $1.3 million and unrealized losses of $0.4 million. We currently estimate that a 10% weakening of the U.S. dollar would not have resulted in a material change in the fair value of the hedges or on our
results of operations.
The fair value of our fair value hedges as of December 31, 2023 was an asset of $0.6 million and a liability of $1.0 million, and for the year ended December 31, 2023, we recorded realized gains of $0.6 million and unrealized
losses of $0.8 million. We currently estimate that a 10% weakening of the U.S. dollar would not have resulted in a material change in the fair value of the hedges or on our results of operations.
We use a number of commodities in our operations and are most exposed to market fluctuations in prices of commodities to the extent that market prices and our contract prices are not or cannot be adjusted to compensate. We
enter into bunker fuel hedges to reduce our risk related to price fluctuations on anticipated bunker fuel purchases in markets where we do not have contract prices that adjust to changes in fuel prices.
As of December 31, 2023, we did not have any bunker fuel hedges outstanding. For the fiscal year ended December 31, 2023, we recorded realized losses of $1.0 million and unrealized gains of $2.9 million. We currently estimate
that a 10% increase in the underlying price of bunker fuel would have not resulted in a material change in the fair value of the hedges or on our results of operations.
As of December 31, 2023 , Dole has $1.1 billion in indebtedness, primarily with variable rate facilities. Therefore, changes in interest rates in our indebtedness could have a material impact on our financial results. See Note 14
“Debt” to the consolidated financial statements included herein for additional information regarding our debt.
We enter into interest rate swaps to hedge our exposure to changes in interest rates on our significant debt facilities. As of December 31, 2023, we held an aggregate notional amount of $700.0 million of interest rate swaps with
maturity dates ranging from one to three years that effectively converted the rate of $700.0 million of debt from variable to fixed. The interest rate swaps pay a fixed rate of interest at rates between 0.42% and 2.50%, with the receiving
rates variable based on SOFR, which were between 5.35% and 5.38% as of December 31, 2023.
79
Table of Contents
The fair value of the interest rate swaps as of December 31, 2023 was an asset of $37.2 million, and for the fiscal year ended December 31, 2023, we recorded unrealized losses of $21.9 million through accumulated other
comprehensive loss, which is net of amounts reclassified to gains within the consolidated statements of operations. Including the impact of hedging instruments, we estimate that a 1% increase in interest rates would result in a net
increase to interest expense of $7.4 million.
A. Debt Securities
Not applicable.
Not applicable.
C. Other Securities
Not applicable.
Not applicable.
80
Table of Contents
PART II
None.
Item 14. Material Modifications to the Rights of Security Holders and Use of Proceeds
None.
E. Use of Proceeds
Not applicable.
The Company maintains disclosure controls and procedures that are designed to ensure that information required to be disclosed in the Company's reports under the Securities Exchange Act of 1934, as amended (the "Exchange
Act”), is recorded, processed, summarized and reported within the time periods specified in the SEC's rules and forms, and that such information is accumulated and communicated to management, including the Company's Chief
Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure. Management, with the participation of our Chief Executive Officer and Chief Financial Officer, has evaluated the
effectiveness of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as of the end of the period covered by this Annual Report on Form 20-F. Based on this evaluation, our Chief
Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective as of December 31, 2023.
Management is responsible for establishing and maintaining adequate internal control over financial reporting. The Company’s internal control system is designed to provide reasonable assurance regarding the reliability of
financial reporting and the preparation and fair presentation of published financial statements in accordance with U.S. GAAP and includes those policies and procedures that: (i) pertain to the maintenance of records that in reasonable
detail accurately and fairly reflect the transactions and dispositions of its assets; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of its financial statements in accordance with U.S. GAAP,
and that its receipts and expenditures are being made only in accordance with authorizations of its management and directors; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition,
use or disposition of the Company's assets that could have a material effect on its financial statements. Internal control over financial reporting may not prevent or detect misstatements due to its inherent limitations. Additionally, any
projections of any evaluations of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions or deterioration in the degree of compliance with our policies and procedures.
Management, under the supervision of the Chief Executive Officer and Chief Financial Officer, and under the oversight of the Board of Directors, assessed the effectiveness of our internal control over financial reporting as of
December 31, 2023, based on criteria established in Internal Control—Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Based on this assessment, we concluded
that, as of December 31, 2023, our internal control over financial reporting was effective.
KPMG, our independent registered public accounting firm, has audited the consolidated financial statements of Dole plc as of and for the year ended December 31, 2023, included herein, and has issued an audit report on our
internal control over financial reporting, which is included elsewhere in this Form 20-F.
81
Table of Contents
Other than the remediation efforts described below taken to address the material weakness during the period covered by this Annual Report, there were no changes in our internal control over financial reporting (as such term is
defined in Rules 13a-15(f) and 15d-15(f) under the Securities Exchange Act) that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
As of December 31, 2022, we determined that a material weakness existed related to ineffective design of controls over review of manual journal entries. The control deficiency resulted in no misstatements in the financial
statements. During the year ended December 31, 2023, we implemented enhanced procedures to remediate the deficiencies in our internal control over financial reporting that resulted in the material weakness. These procedures included,
but were not limited to, (i) assessing the processes and controls over review of manual journal entries; (ii) automating the entry posting process in most cases, and, in cases in which automation was not possible or practical, creating
enhanced review and approval procedures for manual journal entries; and (iii) improving the segregation of duties in connection with the aforementioned processes. Based on the results of our remediation plan and assessment, we have
concluded that the material weakness in internal control over financial reporting described above has been successfully remediated as of December 31, 2023.
Our Board of Directors has determined that each director appointed to the audit committee is financially literate, and our Board of Directors has determined that each audit committee member qualifies as an audit committee
financial expert, and each is independent as defined under the NYSE listing standards. Refer to “Item 6. Directors, Senior Management and Employees” for further detail on each of their backgrounds.
We have adopted a Code of Business Conduct and Ethics, which is posted on our website at https://www.doleplc.com/investor-relations/governance/governance-documents, that applies to all employees and each of our directors
and officers, including our Chief Executive Officer and Chief Financial Officer. Written copies of the Code of Business Conduct and Ethics are available free of charge upon written request to us at the address on the first page of this
annual report. If we make any substantive amendments to the code of ethics or grant any waivers, including any implicit waiver, from a provision of these codes to our Chief Executive Officer, Chief Financial Officer, we will disclose the
nature of such amendment or waiver on our website.
Our principal accountant for the years ended December 31, 2023 and December 31, 2022 was KPMG. We incurred the following fees from KPMG for professional services for the years ended December 31, 2023 and
December 31, 2022:
82
Table of Contents
“Audit fees” are the aggregate fees earned by KPMG for the audit of our consolidated annual financial statements, reviews of interim financial statements and attestation services that are provided in connection with statutory and
regulatory filings or engagements. “Tax fees” are the aggregate fees charged by KPMG for professional services rendered for tax compliance activities. “Audit-related fees” are fees charged by KPMG for assurance and related services
that are reasonably related to the performance of the audit or review of our financial statements and are not reported under “Audit fees.” This category comprises fees for agreed-upon procedures engagements and other attestation services
subject to regulatory requirements. “All other fees” are fees billed in each of the last two fiscal years for products and services provided by KPMG, other than the services reported in the aforementioned categories in this section.
Our Audit Committee nominates and engages our independent registered public accounting firm to audit our consolidated financial statements. Our Audit Committee has a policy requiring management to obtain the Audit
Committee’s approval before engaging our independent registered public accounting firm to provide any other audit or permitted non-audit services to us or our subsidiaries. Pursuant to this policy, which is designed to ensure that such
engagements do not impair the independence of our independent registered public accounting firm, the Audit Committee reviews and pre-approves (if appropriate) specific audit and non-audit services in the categories of Audit Services,
Audit-Related Services, Tax Services and any other services that may be performed by our independent registered public accounting firm. During the year ended December 31, 2023, all audit and non-audit services provided by our
independent registered public accounting firm were pre-approved in accordance with such policies and procedures.
Item 16D. Exemptions from the Listing Standards for Audit Committees
Not Applicable.
Item 16E. Purchases of Equity Securities by the Issuer and Affiliated Purchasers
None.
Not applicable.
Dole plc is a company organized under the laws of Ireland and qualifies as a foreign private issuer under the NYSE corporate governance rules. As a foreign private issuer, we are permitted to follow home-country practice in some
circumstances in lieu of the provisions of the corporate governance rules contained in Section 303A of the NYSE Listed Company Manual that are applicable to U.S. companies. In addition, we must disclose any significant ways in
which our corporate governance practices differ from those followed by U.S. companies listed on the NYSE.
As a foreign private issuer, we are subject to different disclosure and other requirements than domestic U.S. registrants and non-emerging growth companies. For example, as a foreign private issuer, in the U.S., we are not subject
to the same disclosure requirements as a domestic U.S. registrant under the Exchange Act, including the requirements to prepare and issue quarterly reports on Form 10-Q or to file current reports on Form 8-K upon the occurrence of
specified significant events, the proxy rules applicable to domestic U.S. registrants under Section 14 of the Exchange Act or the insider reporting and short-swing profit rules applicable to domestic U.S. registrants under Section 16 of the
Exchange Act. In addition, we may rely on exemptions from certain U.S. rules which permit us to follow Irish legal requirements rather than certain of the requirements that are applicable to U.S. domestic registrants.
83
Table of Contents
We follow Irish laws and regulations that are applicable to Irish companies. However, Irish laws and regulations applicable to Irish companies do not contain provisions directly comparable to the U.S. proxy rules and the U.S. rules
relating to the filing of reports on Form 10-Q or 8-K. Furthermore, foreign private issuers are required to file their Annual Report on Form 20-F within 120 days after the end of each fiscal year, while U.S. domestic issuers that are
accelerated filers are required to file their Annual Report on Form 10-K within 75 days after the end of each fiscal year. Foreign private issuers are also exempt from Regulation Fair Disclosure, aimed at preventing issuers from making
selective disclosures of material information. As a result of the above, even though we are required to file reports on Form 6-K disclosing the limited information which we have made or are required to make public pursuant to Irish law,
or are required to distribute to shareholders generally, and that is material to us, you may not receive information of the same type or amount that is required to be disclosed to shareholders of a U.S. company. The Company currently
intends to follow the corporate governance requirements of the NYSE rather than home country practice. However, the Company cannot make any assurances that it will continue to follow such corporate governance requirements in the
future, and may therefore, in the future, rely on available exemptions that would allow the Company to follow its home country practice. Unlike the requirements of the NYSE, there are currently no mandatory corporate governance
requirements in Ireland that would require the Company to: (i) have a majority of the Board of Directors be independent; (ii) establish a nominating/governance committee; or (iii) hold regular executive sessions where only independent
directors may be present.
Not applicable.
Not applicable.
Not applicable.
The identification, assessment and management of cybersecurity threats are embedded into the Company’s overall risk management strategy and infrastructure. At the global level, an Executive Information Technology and
Security Steering Committee (“IT Steering Committee”) is accountable for developing processes to identity and address risks from cybersecurity threats, including the unauthorized access, use, disruption, modification or destruction of
our information systems and networks or the information residing on those systems and networks. The IT Steering Committee includes the Chief Operating Officer, Chief Financial Officer, the Director of Global Information Security
(“DGIS”) and the two most senior IT leaders. The DGIS is responsible for ensuring that appropriate administrative, technical and physical safeguards are implemented across the Group. These processes that the DGIS is responsible for
include, but are not limited to, maintaining and enhancing information security policies and procedures, implementing effective internal controls, increasing safeguards of information systems and related data, evaluating threats and
vulnerabilities of information technology infrastructures and improving incident evaluation, communication and response. The DGIS supports the implementation of these processes at the local operating level, supporting the operational
IT and cybersecurity teams’ ownership of their IT systems.
The DGIS is responsible for developing, maintaining and monitoring cybersecurity tools including the global cybersecurity roadmap, maturity model, metrics, risk register and training program. The Company has a strong
emphasis on training and education to cultivate awareness of cybersecurity threats among employees and to ensure an appropriate and timely response from cybersecurity leaders throughout the Company.
The Company’s cybersecurity risk management process is integrated into the Company’s enterprise risk management processes. Each operating division considers cybersecurity risk as part of its development of divisional risk
registers. The Company’s Operational Risk Committee, which includes all divisional presidents, uses those divisional risk registers and the cybersecurity risk register, with support from the DGIS, to develop an operational risk register.
The Company’s Executive Risk Committee, which includes executive management, then uses the operational risk register as the foundation of the Company’s enterprise risk register.
84
Table of Contents
From time to time, the Company utilizes third-party auditors and consultants to independently evaluate and test Dole’s cybersecurity strategy, risk management, infrastructure and governance. The Company also utilizes third-party
service providers for certain information systems requirements and employs systems and processes designed to oversee, identify and reduce the potential impact of a security incident at a third-party service provider or otherwise
implicating the third-party technology and systems we use. In particular, cybersecurity risk assessments and the evaluation of controls related to the prevention and detection of cybersecurity incidents related to the use of third-party
service providers are integrated into our global internal controls over financial reporting and information technology general control frameworks. External experts, combined with our internal teams and frameworks, are used to support
the Company’s ability to identify, detect, protect against, respond to and recover from cybersecurity incidents.
The Company experienced a cybersecurity incident in 2023. In response, the Company engaged third-party providers to assist with investigation of the incident, including Dole’s readiness and response, and the Company is
implementing resulting recommendations as appropriate. The Company does not believe that any risks from cybersecurity threats, including as a result of the 2023 incident, are reasonably likely to have materially affected or are
reasonably likely to materially affect the Company. For more information, please see “Item 3D. Risk Factors—We are subject to risks relating to our handling of information, operation of our information systems, and the information
systems of third parties.”
Governance
The DGIS has responsibility for the design and implementation of the Company’s global information security strategy, in addition to ensuring that appropriate tools and monitoring are in place. The DGIS works directly with the
individuals responsible for cybersecurity embedded within the Company’s operating divisions and has a direct line of communication with these individuals for all cybersecurity related matters, including the cybersecurity risk
identification, assessment and management process and the prevention, detection, mitigation and remediation of cybersecurity incidents. The DGIS has over two decades of experience in information technology and related fields,
including information technology management, internal audit, data protection and cybersecurity, and previously served as the Global Information Security Director for Legacy Dole.
The Company has developed formal information and communication channels for cybersecurity incidents to be reported to the IT Steering Committee. In the case of a cybersecurity incident, we prioritize incident response and
containment of the threat, including mitigating the threat’s impact on business operations and minimizing the risk of data theft and loss.
The Audit Committee is responsible for reviewing the Company’s guidelines and policies governing the process by which senior management of the Company, including the DGIS, and the relevant departments of the Company,
assess and manage the Company’s exposure to risk. The Board of Directors is responsible for overseeing the assessment and management of cybersecurity risk exposures, including discussing with management such risk exposures and
the steps management has taken to monitor and control such exposures.
The Executive Risk Committee reports annually to the Audit Committee on its work in developing the global risk register, including reporting on the final risk register. As discussed above, cybersecurity risk assessment is part of
that process. The Board is responsible for reviewing the measures implemented by the Company to identify and mitigate risks from cybersecurity threats. As part of such reviews, the Board receives reports and presentations from
members of our team responsible for overseeing the Company’s cybersecurity risk management, including the IT Steering Committee, represented by the Chief Operating Officer and Chief Financial Officer, and the DGIS.
85
Table of Contents
PART III
Item 17. Financial Statements
The audited consolidated financial statements as required under Item 18 are attached hereto starting on page F-1 of this Form 20-F.
EXHIBIT INDEX
Exhibit No. Description
1.1 Memorandum and Articles of Association of Dole plc (incorporated by reference to Exhibit 3.1 to the Registrant’s Form F-1/A (File No. 333-257621), filed with the Securities and
Exchange Commission on July 19, 2021)
2.1 Description of Rights of Securities Registered under Section 12 of the Securities Exchange Act of 1934 (incorporated by reference to Registration Statement on Form 8-A (File No. 333-
257621) that was filed on July 29, 2021 by Dole plc)
4.1 Credit Agreement, dated as of March 26, 2021, among Total Produce plc, the lenders from time to time party thereto and Coöperatieve Rabobank U.A., New York Branch, as administrative
agent and collateral agent (incorporated by reference to Exhibit 10.1 to the Registrant’s Form F-1/A (File No. 333-257621), filed with the Securities and Exchange Commission on July 19,
2021)
4.2 Transaction Agreement, dated February 16, 2021, among Total Produce plc, Total Produce USA Holdings Inc., Dole plc (formerly known as Pearmill Limited), TP-Dole Merger Sub, LLC,
DFC Holdings, LLC, The Murdock Group, LLC, Castle & Cooke Holdings, Inc. and Dolicious Corporation (incorporated by reference to Exhibit 10.9 to the Registrant’s Form F-1/A (File
No. 333-257621), filed with the Securities and Exchange Commission on July 19, 2021)
4.3 Amendment No. 1 to Transaction Agreement, dated April 23, 2021, among Total Produce plc, Total Produce USA Holdings Inc., Dole plc (formerly known as Dole Limited and Pearmill
Limited), TP-Dole Merger Sub, LLC, DFC Holdings, LLC, The Murdock Group, LLC, Castle & Cooke Holdings, Inc. and Dolicious Corporation (incorporated by reference to Exhibit
10.10 to the Registrant’s Form F-1/A (File No. 333-257621), filed with the Securities and Exchange Commission on July 19, 2021)
4.4 Registration Rights Agreement, dated August 3, 2021, among Dole plc and The Murdock Group, LLC, Castle & Cooke Holdings, Inc. (incorporated by reference to Exhibit 4.4 to the
Registrant's Form 20-F (File No. 001-40695), filed with the Securities and Exchange Commission on March 22, 2022)
4.5 † Dole plc 2021 Omnibus Compensation Incentive Plan (incorporated by reference to Exhibit 10.11 to the Registrant’s Form F-1/A (File No. 333-257621), filed with the Securities and
Exchange Commission on July 19, 2021)
4.6 † Form of Dole plc 2021 Omnibus Incentive Compensation Plan Restricted Stock Unit Award Agreement for Named Executive Officers (incorporated by reference to Exhibit 10.12 to the
Registrant’s Form F-1/A (File No. 333-257621), filed with the Securities and Exchange Commission on July 19, 2021)
4.7 † Form of Dole plc 2021 Omnibus Incentive Compensation Plan Stock Option Agreement for Named Executive Officers (incorporated by reference to Exhibit 10.13 to the Registrant’s Form
F-1/A (File No. 333-257621), filed with the Securities and Exchange Commission on July 19, 2021)
4.8 † Form of Dole plc 2021 Omnibus Incentive Compensation Plan Restricted Stock Unit Award Agreement for Non-Employee Director (incorporated by reference to Exhibit 10.14 to the
Registrant’s Form F-1/A (File No. 333-257621), filed with the Securities and Exchange Commission on July 19, 2021)
4.9 † Dole plc Executive Severance Plan (incorporated by reference to Exhibit 10.19 to the Registrant’s Form F-1/A (File No. 333-257621), filed with the Securities and Exchange Commission
on July 19, 2021)
86
Table of Contents
4.10 † Form of Indemnification Agreement between Dole and each of its executive officers and Directors dated as of July 18, 2021 (incorporated by reference to Exhibit 10.15 to the Registrant’s
Form F-1/A (File No. 333-257621), filed with the Securities and Exchange Commission on July 19, 2021)
4.11 † Offer Letter between Dole Food Company, Inc and Johan Lindén, dated July 8, 2015 (incorporated by reference to Exhibit 10.17 to the Registrant’s Form F-1/A (File No. 333-257621),
filed with the Securities and Exchange Commission on July 19, 2021)
4.12 † Retention Agreement between Dole Food Company, Inc. and Johan Lindén, dated June 14, 2018 (incorporated by reference to Exhibit 10.18 to the Registrant’s Form F-1/A (File No. 333-
257621), filed with the Securities and Exchange Commission on July 19, 2021)
4.13 Stock Purchase Agreement, dated as of January 30, 2023, by and among Fresh Express Acquisitions LLC, Dole Fresh Vegetables, Inc., Bud Antle, Inc., Dole Food Company, Inc., solely
for the purposes set forth therein, and Fresh Express Incorporated, solely for the purposes set forth therein (incorporated by reference to Exhibit 99.1 to the Registrant’s Form 6-K (File No.
001-40695), filed with the Securities and Exchange Commission on January 31, 2023)
4.14 * Credit Agreement, dated as of March 26, 2021, Amendment No. 5, dated November 14, 2023 among Total Produce plc, the lenders from time to time party thereto and Coöperatieve
Rabobank U.A., New York Branch, as administrative agent and collateral agent (incorporated by reference to Exhibit 4.14 to the Registrant’s Form 20-F, filed with the Securities and
Exchange Commission on March 28, 2024)
4.15 Termination Agreement, dated as of March 27, 2024, by and among Fresh Express Acquisitions LLC, Dole Fresh Vegetables, Inc., Bud Antle, Inc., Dole Food Company, Inc., and Fresh
Express Incorporated (incorporated by reference to Exhibit 99.1 to the Registrant’s Form 6-K (File No. 001-40695), filed with the Securities and Exchange Commission on March 28,
2024)
8.1 List of Significant Subsidiaries (incorporated by reference to Exhibit 22.1 to the Registrant’s Form F-1 (File No. 333-257621), filed with the Securities and Exchange Commission on July
2, 2021.
12.1 * Certification by Chief Executive Officer Pursuant to Section 302 of Sarbanes-Oxley Act of 2002
12.2 * Certification by Chief Financial Officer Pursuant to Section 302 of Sarbanes-Oxley Act of 2002
13.1 * Certification by Chief Executive Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
13.2 * Certification by Chief Financial Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
15.1 * Consent of Independent Registered Public Accounting Firm
97.1 * Executive Officer Clawback-Policy
101.INS * Inline XBRL Instance Document - the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document
101.SCH * Inline XBRL Schema Document
101.CAL * Inline XBRL Calculation Linkbase Document
101.DEF * Inline XBRL Definition Linkbase Document
101.LAB * Inline XBRL Label Linkbase Document
101.PRE * Inline XBRL Presentation Linkbase Document
104 * Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101).
* Filed herewith.
† Management contract or compensatory plan or arrangement.
87
Table of Contents
DOLE PLC
SIGNATURES
The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this Annual Report on its behalf.
88
Dole plc
Consolidated Statements of Operations for the Years ended December 31, 2023, December 31, 2022 and December 31, 2021 F-6
Consolidated Statements of Comprehensive Income (Loss) for the Year ended December 31, 2023, December 31, 2022 and December 31, 2021 F-7
Consolidated Statements of Cash Flows for the Years ended December 31, 2023, December 31, 2022 and December 31, 2021 F-8
Consolidated Statements of Stockholders’ Equity for the Years ended December 31, 2023, December 31, 2022 and December 31, 2021 F-9
F-1
Table of Contents
Dole plc:
We have audited the accompanying consolidated balance sheets of Dole plc and subsidiaries (“the Company”) as of December 31, 2023 and 2022, the related consolidated statements of operations, comprehensive income (loss),
stockholders’ equity, and cash flows for each of the years in the three‑year period ended December 31, 2023, and the related notes (collectively, the consolidated financial statements). In our opinion, the consolidated financial statements
present fairly, in all material respects, the financial position of the Company as of December 31, 2023 and 2022, and the results of its operations and its cash flows for each of the years in the three‑year period ended December 31, 2023,
in conformity with U.S. generally accepted accounting principles.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the Company’s internal control over financial reporting as of December 31, 2023, based on criteria
established in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission, and our report dated March 28, 2024 expressed an unqualified opinion on the
effectiveness of the Company’s internal control over financial reporting.
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits. We are a public accounting firm
registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the
PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material
misstatement, whether due to error or fraud. Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that
respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and
significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.
The critical audit matter communicated below is a matter arising from the current period audit of the consolidated financial statements that were communicated or required to be communicated to the audit committee and that: (1) relates
to accounts or disclosures that are material to the consolidated financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of a critical audit matter does not alter in any way our
opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it
relates.
Impairment assessment of the Dole brand intangible asset and goodwill for the Fresh Fruit reporting unit
As discussed in Notes 2 and 13 to the consolidated financial statements, the carrying amount of the Dole brand intangible asset and goodwill related to the Fresh Fruit reporting unit were $306,280 thousand and $273,275 thousand,
respectively, as of December 31, 2023. The Company evaluates goodwill and other indefinite-lived intangible assets for impairment annually during the fourth quarter, or more frequently if an event occurs or circumstances change
that would indicate that an impairment may exist. For the 2023 annual impairment assessment of the Dole brand intangible asset and each reporting unit with goodwill, the Company elected to perform the quantitative assessment
with the assistance of a third-party specialist.
F-2
Table of Contents
We identified the evaluation of the impairment assessment of the Dole brand intangible asset and goodwill related to the Fresh Fruit reporting unit as a critical audit matter. Subjective auditor judgment and specialized skills and
knowledge were required in assessing the key assumptions used in the impairment assessment to estimate the fair values of the Dole Brand and Fresh Fruit reporting unit, specifically the discount rates, and the Dole brand royalty
rate. Minor changes to these assumptions would have a significant effect on the estimated fair value.
The following are the primary procedures we performed to address this critical audit matter:
– We evaluated the design and tested the operating effectiveness of certain internal controls over the Company’s goodwill and intangible assets process, including controls related to the key assumptions.
– We involved valuation professionals with specialized skills and knowledge, who assisted in:
• evaluating the discount rates, by comparing them against ranges that were independently developed using publicly available market data for comparable entities, and
• evaluating the royalty rate through the excess earnings approach, by assessing qualitative factors specific to Fresh Fruit reporting unit and the Dole brand, and by comparing it to market benchmarks and royalty rates for
comparable brands.
(signed) KPMG
Dublin, Ireland
F-3
Table of Contents
Dole plc:
We have audited Dole plc and subsidiaries (the Company) internal control over financial reporting as of December 31, 2023, based on criteria established in Internal Control – Integrated Framework (2013) issued by the Committee of
Sponsoring Organizations of the Treadway Commission. In our opinion, the Company has maintained, in all material respects, effective internal control over financial reporting as of December 31, 2023, based on criteria established in
Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheets of the Company as of December 31, 2023 and 2022, the related
statements of operations, comprehensive income (loss), stockholders’ equity, and cash flows for each of the years in the three year period ended December 31, 2023, and the related notes (collectively, the consolidated financial
statements), and our report dated March 28, 2024 expressed an unqualified opinion on those consolidated financial statements.
The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying
Management’s Annual Report on internal control over financial reporting. Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit. We are a public accounting firm
registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the
PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was
maintained in all material respects. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and
evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audit also included performing such other procedures as we considered necessary in the circumstances. We believe that our audit
provides a reasonable basis for our opinion.
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted
accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or
timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become
inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
(signed) KPMG
Dublin, Ireland
F-4
Table of Contents
DOLE PLC
CONSOLIDATED BALANCE SHEETS
December 31, 2023 December 31, 2022
ASSETS (U.S. Dollars and shares in thousands)
Cash and cash equivalents $ 275,580 $ 228,840
Short-term investments 5,899 5,367
Trade receivables, net of allowances for credit losses of $18,360 and $18,001, respectively 538,177 610,384
Grower advance receivables, net of allowances of $19,839 and $15,817, respectively 109,958 106,864
Other receivables, net of allowances of $13,227 and $14,538, respectively 117,069 132,947
Inventories, net of allowances of $4,792 and $4,186, respectively 378,592 394,150
Prepaid expenses 61,724 48,995
Other current assets 17,401 15,034
Fresh Vegetables current assets held for sale 414,457 62,252
Other assets held-for-sale 1,832 645
Total current assets 1,920,689 1,605,478
Long-term investments 15,970 16,498
Investments in unconsolidated affiliates 131,704 124,234
Actively marketed property 13,781 31,007
Property, plant and equipment, net of accumulated depreciation of $444,775 and $375,721, respectively 1,102,234 1,116,124
Operating lease right-of-use assets 340,458 293,658
Goodwill 513,312 497,453
DOLE brand 306,280 306,280
Other intangible assets, net of accumulated amortization of $134,420 and $120,315, respectively 41,232 50,990
Fresh Vegetables non-current assets held for sale — 343,828
Other assets 109,048 142,180
Deferred tax assets, net 66,485 64,112
Total assets $ 4,561,193 $ 4,591,842
LIABILITIES AND EQUITY
Accounts payable $ 670,904 $ 640,620
Income taxes payable 22,917 11,558
Accrued liabilities 357,427 381,688
Bank overdrafts 11,488 8,623
Current portion of long-term debt, net 222,940 97,435
Current maturities of operating leases 63,653 57,372
Payroll and other tax 27,791 27,187
Contingent consideration 1,788 1,791
Pension and postretirement benefits 16,570 17,287
Fresh Vegetables current liabilities held for sale 291,342 199,255
Dividends payable and other current liabilities 29,892 17,698
Total current liabilities 1,716,712 1,460,514
Long-term debt, net 845,013 1,127,321
Operating leases, less current maturities 287,991 246,723
Deferred tax liabilities, net 92,653 118,403
Income taxes payable, less current portion 16,664 30,458
Contingent consideration, less current portion 7,327 5,022
Pension and postretirement benefits, less current portion 121,689 124,646
Fresh Vegetables non-current liabilities held for sale — 116,380
Other long-term liabilities 52,295 43,390
Total liabilities $ 3,140,344 $ 3,272,857
Contingencies (See Note 19)
Redeemable noncontrolling interests 34,185 32,311
Stockholders’ equity:
Common stock — $0.01 par value; 300,000 shares authorized and 94,929 and 94,899 shares outstanding as of December 31, 2023 and December 31, 2022, respectively 949 949
Additional paid-in capital 796,800 795,063
Retained earnings 562,562 469,249
Accumulated other comprehensive loss (110,791) (104,133)
Total equity attributable to Dole plc 1,249,520 1,161,128
Equity attributable to noncontrolling interests 137,144 125,546
Total equity 1,386,664 1,286,674
Total liabilities, redeemable noncontrolling interests and equity $ 4,561,193 $ 4,591,842
F-5
Table of Contents
DOLE PLC
CONSOLIDATED STATEMENTS OF OPERATIONS
Year Ended
December 31, December 31, December 31,
2023 2022 2021
(U.S. Dollars and shares in thousands, except per share amounts)
Revenue, net $ 8,245,268 $ 8,024,403 $ 5,943,739
Cost of sales (7,551,098) (7,424,525) (5,599,743)
Gross profit 694,170 599,878 343,996
Selling, marketing, general and administrative expenses (473,903) (436,192) (323,190)
Merger, transaction and other related costs — — (30,072)
Gain on disposal of businesses — 192 11
Impairment and asset write-downs of property, plant and equipment (2,217) (397) —
Gain on asset sales 54,108 11,784 561
Operating income (loss) 272,158 175,265 (8,694)
Other income, net 4,799 10,600 8,435
Interest income 10,083 6,407 3,805
Interest expense (81,113) (56,371) (24,992)
Income (loss) from continuing operations before income taxes and equity earnings 205,927 135,901 (21,446)
Income tax (expense) benefit (43,591) 25,603 10,980
Equity method earnings 15,191 6,726 48,027
Income from continuing operations 177,527 168,230 37,561
Loss from discontinued operations, net of income taxes (21,818) (56,447) (20,568)
Net income 155,709 111,783 16,993
Less: Net income attributable to noncontrolling interests (31,646) (25,287) (24,212)
Net income (loss) attributable to Dole plc $ 124,063 $ 86,496 $ (7,219)
Weighted-average shares:
Basic 94,917 94,886 72,190
Diluted 95,118 94,914 72,384
F-6
Table of Contents
DOLE PLC
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)
Year Ended
December 31, December 31, December 31,
2023 2022 2021
(U.S. Dollars in thousands)
Net income $ 155,709 $ 111,783 $ 16,993
Other comprehensive income (loss), net of tax:
Net unrealized (loss) gain on derivatives (16,014) 31,786 11,209
Foreign currency translation adjustment 24,679 (38,068) (34,772)
Change in pension and postretirement benefits (11,304) 22,959 2,532
Reclassification of pension activity — — 15,462
Total other comprehensive (loss) income (2,639) 16,677 (5,569)
Comprehensive income 153,070 128,460 11,424
Less: Comprehensive income attributable to noncontrolling interests (35,666) (20,178) (15,759)
Comprehensive income (loss) attributable to Dole plc $ 117,404 $ 108,282 $ (4,335)
F-7
Table of Contents
DOLE PLC
CONSOLIDATED STATEMENTS OF CASH FLOWS
Year Ended
December 31, 2023 December 31, 2022 December 31, 2021
Operating Activities (U.S. Dollars in thousands)
Net income $ 155,709 $ 111,783 $ 16,993
Loss from discontinued operations, net of income taxes 21,818 56,447 20,568
Income from continuing operations 177,527 168,230 37,561
Adjustments to reconcile net income to net cash provided by operating activities:
Depreciation and amortization 104,168 109,596 65,468
Incremental charges on purchase accounting valuation of biological assets and inventory — 41,145 66,492
Net gain on sale of assets (54,108) (11,784) (561)
Stock-based compensation expense 6,045 4,500 815
Equity method earnings (15,191) (6,726) (48,027)
Amortization of debt discounts and debt issuance costs 6,390 6,213 2,634
Deferred tax benefit (12,600) (31,061) (20,915)
Pension and other postretirement benefit plan expense 7,735 3,151 2,913
Dividends received from equity method investees 9,388 9,817 12,137
Other 4,268 7,164 (563)
Changes in operating assets and liabilities:
Receivables, net of allowances 58,794 55,150 (30,234)
Inventories 20,688 (31,685) (51,981)
Prepaids, other current assets and other assets (27,521) (11,073) (6,640)
Accounts payable, accrued liabilities and other liabilities 13,022 10,975 (8,515)
Net cash provided by operating activities - continuing operations 298,605 323,612 20,584
Investing Activities
Sales of assets 83,557 36,676 26,308
Capital expenditures (78,041) (85,564) (58,617)
Acquisitions, net of cash acquired (1,263) (4,886) 103,595
Insurance proceeds 1,054 2,278 10,455
Purchases of investments (1,153) (458) (1,210)
Net sales (purchases) of investments in unconsolidated affiliates 1,013 (3,029) 8,774
Other 57 912 332
Net cash provided by (used in) investing activities - continuing operations 5,224 (54,071) 89,637
Financing Activities
Proceeds from borrowings and overdrafts 1,407,970 1,293,280 2,145,427
Repayments on borrowings and overdrafts (1,576,067) (1,411,467) (2,487,130)
Payment of debt issuance costs (44) (304) (22,133)
Dividends paid to shareholders (30,373) (30,364) (17,092)
Dividends paid to noncontrolling interests (28,522) (21,632) (21,683)
Other noncontrolling interest activity, net (1,300) — 382
Proceeds from exercise of stock options — — 7,041
Payments of contingent consideration (1,662) (2,909) (5,031)
Proceeds received from issuance of common stock in initial public offering, net of issuance costs — — 398,876
Net cash used in financing activities - continuing operations (229,998) (173,396) (1,343)
Effect of foreign currency exchange rate changes on cash 5,448 (20,712) (7,794)
Net cash used in operating activities - discontinued operations (22,622) (84,720) (4,205)
Net cash used in investing activities - discontinued operations (8,492) (12,434) (6,821)
Cash used in discontinued operations, net (31,114) (97,154) (11,026)
Increase (decrease) in cash and cash equivalents 48,165 (21,721) 90,058
Cash and cash equivalents at beginning of period, including discontinued operations 228,840 250,561 160,503
Cash and cash equivalents at end of period, including discontinued operations $ 277,005 $ 228,840 $ 250,561
F-8
Table of Contents
DOLE PLC
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY
F-9
Table of Contents
DOLE PLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Dole plc is engaged in the worldwide sourcing, processing, distributing and marketing of high-quality fresh fruit and vegetables. Dole is a premier global leader in fresh produce, and the Company’s most significant products hold
leading positions in their respective categories and territories. Dole is one of the largest producers of fresh bananas and pineapples, one of the largest global exporters of grapes and has a strong presence in growing categories such as
berries, avocados and organic produce.
Dole conducts operations throughout North America, Latin America, Europe, Asia, the Middle East and Africa (primarily in South Africa). As a result of its global operating and financing activities, Dole is exposed to certain risks,
including fluctuations in commodity and fuel costs, interest rates and foreign currency exchange rates, as well as other environmental and business risks in sourcing and selling locations.
Dole offers over 300 products that are grown and sourced, both locally and globally, from over 30 countries in various regions worldwide. These products are distributed and marketed in over 75 countries across retail, wholesale
and food service channels. The Company operates through a number of business-to-business and business-to-consumer brands, the most notable being the Dole brand (“DOLE brand”).
Dole is incorporated in Ireland and was formed as a result of the combination of Total Produce and Legacy Dole. On February 16, 2021, Total Produce, Legacy Dole and the C&C Parties entered into a binding transaction
agreement to combine Total Produce and Legacy Dole under a newly created entity, later named Dole plc, listed publicly in the U.S. Prior to the Merger, Total Produce had a 45.0% ownership interest in Legacy Dole. On July 29, 2021,
the Merger between Total Produce and Legacy Dole occurred, and Total Produce shareholders and the C&C Parties received 82.5% and 17.5%, respectively, of the shares in Dole plc outstanding immediately prior to the IPO Transaction.
On July 30, 2021, Dole plc consummated its IPO on the NYSE under the ticker symbol “DOLE”. In the IPO, Dole issued 25.0 million shares of common stock at $16.00 per share. In addition, on August 30, 2021, an additional 1.8
million shares of common stock were issued to the underwriters upon their exercise of the option to purchase them at the price of $16.00 per share. In the year ended December 31, 2021, total gross proceeds from the issuance of shares
were $428.5 million, and after underwriting fees and other issuance costs of $29.6 million, net proceeds were $398.9 million. The proceeds from the IPO Transaction were used to fund the payment of certain outstanding debt balances.
See Note 4 “Acquisitions and Divestitures” for additional detail on the Merger and the IPO Transaction.
On January 30, 2023, certain of Dole’s wholly owned subsidiaries entered into a Stock Purchase Agreement (the “Fresh Express Agreement”) with Fresh Express Acquisition LLC (“Fresh Express”), a wholly owned subsidiary of
Chiquita Holdings Limited, pursuant to which Fresh Express agreed to acquire Dole’s fresh vegetables division (“Fresh Vegetables division” or “Fresh Vegetables”) for approximately $293.0 million in cash, subject to certain adjustments
set forth in the Fresh Express Agreement. On March 27, 2024, the parties to the Fresh Express Agreement agreed to terminate the Fresh Express Agreement due to a failure to obtain regulatory approval, and Dole announced that it is in
the process of pursuing alternative transactions through which it would exit the Fresh Vegetables business (the “Vegetables exit process”). See Note 25 “Subsequent Events”.
As a result of the agreement to exit the Fresh Vegetables division, its results are reported separately as discontinued operations, net of income taxes, in our consolidated statements of operations for all periods presented and its
assets and liabilities are separately presented in our consolidated balance sheets as assets and liabilities held for sale. See Note 4 “Acquisitions and Divestitures” for further detail on the Vegetables Transaction and discontinued operations.
The financial statements herein are prepared in conformity with generally accepted accounting principles in the U.S. (“U.S. GAAP”). In the opinion of management, the consolidated financial statements of Dole include all
necessary adjustments, which are of a normal recurring nature, to present fairly Dole’s financial position, results of operations and cash flows.
F-10
Table of Contents
Dole’s consolidated financial statements include the accounts of majority-owned subsidiaries over which Dole exercises control, entities that are not majority-owned but require consolidation, because Dole has the ability to
exercise control over operating and financial policies or has the power to direct the activities that most significantly impact the entities’ economic performance, and all variable interest entities (“VIEs”) for which Dole is the primary
beneficiary.
Total Produce is the accounting acquirer of Legacy Dole, and as such, all Dole plc operating results prior to the Merger are only reflective of Total Produce, which included Total Produce’s 45.0% share of Legacy Dole’s net income
included within equity method earnings in the consolidated statements of operations.
Intercompany accounts and transactions have been eliminated in consolidation. The results of consolidated entities are included from the effective date of control or, in the case of VIEs, from the date that Dole becomes the primary
beneficiary. The results of subsidiaries sold or otherwise deconsolidated are excluded from consolidated results as of the date that Dole ceases to control the subsidiary or, in the case of VIEs, when Dole ceases to be the primary
beneficiary.
The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the amounts and disclosures reported in the financial statements and accompanying notes.
Estimates and assumptions include, but are not limited to, the areas of customer and grower receivables, inventories, impairment of assets, useful lives of property, plant and equipment, intangible assets, income taxes, retirement benefits,
business combinations, financial instruments and contingencies. Actual results could differ from these estimates and assumptions.
In the year ended December 31, 2021, the Company reclassified $15.5 million of pension activity from retained earnings to other comprehensive income (loss) to correct the presentation of pension and other postretirement benefits
within accumulated other comprehensive loss. The change did not have an impact to Dole’s results of operations, financial condition or cash flows.
Revenue Recognition: Revenue is recognized when a performance obligation is satisfied as control of a good or service is transferred to a customer in the amount expected to be entitled at transfer. For each customer contract, the
performance obligations are identified, the transaction price is allocated to the individual performance obligations, and revenue is recognized when these performance obligations are fulfilled and control of the good or service is
transferred to the customer. The transfer of control of a good or service to customers is generally based on written sales terms that allow customers right of return when the good or service does not meet certain quality factors.
Revenue consists primarily of product revenue, which includes the selling of fresh produce, health foods and consumer goods to third-party customers. Fresh produce comprises two main product categories, tropical fruit and
diversified produce. Tropical fruit primarily consists of bananas and pineapples, and diversified produce primarily consists of all other fruit, vegetables and other produce. Product revenue also includes surcharges for additional product
services such as freight, cooling, warehousing, fuel, containerization, handling and palletization related to the transfer of products. Additionally, the Company has certain marketing contracts where Dole is the principal, and the related
product revenue and cost of sales are reported on a gross basis. Product revenue is recognized at a point in time when control of the goods has been transferred to the customer, which can be upon shipping or delivery, depending on the
terms of sale.
Revenue also includes service revenue, which includes third-party freight services and royalties for the use of Company brands and trademarks. Additionally, the Company maintains a commercial cargo business where revenue is
earned by providing handling and transportation services of containerized cargo on Company vessels. Net service revenue was less than 10% of total revenue for the years ended December 31, 2023, December 31, 2022 and December 31,
2021. See Note 5 “Revenue” for additional detail of the Company’s revenue by product and channel.
Dole’s incremental costs of obtaining a contract have primarily consisted of sales commissions, and the Company has elected the practical expedient to expense these costs that are related to contracts that are less than one year.
These costs are included in selling, marketing and general and administrative expenses in the consolidated statements of operations. If these costs relate to contracts that are greater than one year, the incremental costs are capitalized as a
contract asset and amortized over the period from which the contract is obtained until the performance obligations are met. Dole’s contracts are generally less than one year, and incremental costs of obtaining a contract are not material.
The Company treats shipping and handling costs that occur after the customer obtains control of the good as a fulfillment cost rather than a service performance obligation. Additionally, Dole has elected the practical expedient to
exclude sales and other taxes imposed by government authorities on revenue-producing transactions from the transaction price.
F-11
Table of Contents
The period between the transfer of a promised good or service to a customer and customer payment is expected to be less than one year and, as such, Dole has elected the practical expedient to not adjust the promised amount of
consideration for the effects of a significant financing component.
Revenue is recorded net of any sales allowances, sales promotions and sales incentives. Sales allowances are calculated based on historical claims information. Dole offers sales promotions and sales incentives to its customers.
Sales promotions are temporary price reductions on third-party sales, and sales incentives include consumer coupons and discounts, volume and timing rebates and product placement fees. Estimated sales discounts are recorded in the
period in which the related sale is recognized. Volume rebates are recognized in the period of sale as a reduction of revenue based on Dole’s estimate of sales volume over the term of the arrangement. All other sales incentives are
estimated using both historical trends and current volumes and assumptions. The Company also enters cooperative advertising arrangements in which Dole refunds a retailer for a portion of the costs incurred to advertise Dole’s products.
The value of these arrangements is treated as a reduction of revenue, unless the arrangement is in exchange for a distinct good or service, in which case, these amounts are recorded in selling, marketing and general and administrative
expenses in the consolidated statements of operations. Adjustments to sales estimates are made periodically as new information becomes available and actual sales volumes become known. Adjustments to these estimates have historically
not been significant to Dole.
Cost of Sales: Cost of sales primarily consists of costs associated with the production or purchasing of inventory, packaging materials, labor, depreciation, overhead, transportation and other distribution costs. Cost of sales also
includes recurring agricultural costs and shipping and handling costs, which are detailed below.
Agricultural Costs: Plant costs, including seeds, trees, vines and stems, and preproduction costs, including land preparation, pre-planting and planting costs, are generally capitalized into inventory and charged to cost of sales when
the related crop is harvested and sold, with the exception of pineapples, in which the costs are generally expensed as incurred. Certain plant and preproduction costs are capitalized to property, plant and equipment, depending on the crop,
and charged to cost of sales over their life. All land development costs, including farm and soil improvements, are capitalized to property, plant and equipment. The useful lives for plant, preproduction and land development costs
capitalized to property, plant and equipment are 2 to 25 years and are based on historical yields, climate and weather conditions and likelihood of disease and pest interference. Recurring agricultural costs after the preproduction period,
including ongoing pruning, fertilization, watering and farm labor, are generally capitalized into inventory and charged to cost of sales when the related crop is harvested and sold, with the exception of pineapples and bananas, in which the
costs are expensed as incurred, due to the continuous nature of production and associated costs incurred throughout the year.
Shipping and Handling Costs: Amounts billed to third-party customers for shipping and handling are included as a component of revenue. Shipping and handling costs incurred are included as a component of cost of sales and
represent fulfillment costs incurred by Dole to ship products from the sourcing location to the end customer and are not considered separate performance obligations.
Value-Added Taxes: Value-added taxes that are collected from customers and remitted to taxing authorities are excluded from revenue and cost of sales. Receivables related to value-added taxes are included within other
receivables, net, and other assets in the consolidated balance sheets, depending on the expected timing of collection. Payables related to value-added taxes are included within payroll and other tax in the consolidated balance sheets.
Marketing and Advertising Costs: Marketing and advertising costs, which include media, production and other promotional costs, are generally expensed in the period in which the marketing or advertising first takes place.
Marketing and advertising costs, included in selling, marketing and general and administrative expenses in the consolidated statements of operations, amounted to $17.9 million, $17.8 million and $10.6 million for the years ended
December 31, 2023, December 31, 2022 and December 31, 2021, respectively.
Research and Development Costs: Research and development costs are expensed as incurred and are included in cost of sales or selling, marketing and general and administrative expenses in the consolidated statements of
operations, based on the nature of the project. Research and development costs amounted to $9.0 million, $9.2 million and $3.8 million for the years ended December 31, 2023 and December 31, 2022 and December 31, 2021 respectively.
Merger, Transaction and Other Related Costs: Dole records and separately states merger, transaction and other related costs to reflect non-recurring acquisition, divestiture and merger-related activities. These costs were $11.5
million for the year ended December 31, 2023 and are recorded in loss from discontinued operations, net of income taxes in the consolidated statements of operations. These costs were not material for the year ended December 31, 2022
and $30.1 million for the year ended December 31, 2021 and primarily related to the Merger and IPO Transaction.
F-12
Table of Contents
Gain on Asset Sales: Gain on asset sales primarily consists of gains and losses incurred through the disposal of assets held-for-sale and actively marketed property and other property disposed in the ordinary course of business.
During the years ended December 31, 2023 and December 31, 2022, gains on asset sales were $54.1 million and $11.8 million, respectively and primarily relate to disposal of assets held-for-sale and actively marketed property. During
the year ended December 31, 2021, gains and losses on asset sales were not material. See Note 11 “Assets Held-For-Sale and Actively Marketed Property” for additional detail.
Gain on Disposal of Businesses: Dole records and separately states the net gains and losses related to the disposal of businesses or subsidiaries.
Interest Income: Interest income comprises interest earned from funds invested and other receivables, such as interest earned on grower advances, and is recognized using the effective interest method over the term of the
underlying agreement.
Interest Expense: Interest expense comprises interest on borrowings, amortization of discounts and issuance costs related to borrowings, interest on finance lease liabilities, fees for the sale of trade receivables, debt extinguishment
costs and arrangement fees for borrowings.
Income Taxes: Dole accounts for deferred taxes under the asset and liability method, which requires the recognition of deferred tax assets and liabilities for the expected future tax consequences of events that have been included in
the financial statements. Under this method, deferred tax assets and liabilities are determined based on the differences between the financial statement carrying amount and the tax basis of assets and liabilities, using enacted tax rates in
effect for the year in which the differences are expected to reverse. The effect of a change in tax rates on deferred tax assets and liabilities is recognized in income in the period that includes the enactment date.
A valuation allowance is provided to reduce deferred tax assets to the amount more likely than not to be realized. The Company recognizes the benefit of a tax position only to the extent that it is more likely than not that the tax
position will be sustained on examination by the taxing authorities, based on the technical merits of the position. If the tax position is deemed more-likely-than-not to be sustained, the tax position is then assessed to determine the amount
of benefit to recognize in the consolidated financial statements. The amount of the benefit that is recognized is the largest amount that is greater than 50.0% likely of being realized upon settlement. Income tax expense or benefit includes
the effects of any resulting unrecognized tax benefits that are considered appropriate, as well as related net interest and penalties. In respect to undistributed earnings for foreign subsidiaries where those earnings are considered to be either
indefinitely reinvested or could be distributed tax free, no deferred tax liability has been provided thereon.
The Company releases income tax effects from accumulated other comprehensive loss as individual items in accumulated other comprehensive loss are settled or otherwise disposed.
Discontinued Operations: The disposal or held-for-sale designation of a component or a group of components is presented as discontinued operations when it represents a strategic shift that had, or will have, a major effect on
Dole’s operations and financial results. A component of an entity comprises operations and cash flows that can be clearly distinguished both operationally and for financial reporting purposes. In the first quarter of 2023, management
determined that the planned exit of the Fresh Vegetables division met the criteria to be classified as held for sale and its results reported as a discontinued operation. See further detail in Note 4 “Acquisitions and Divestitures”.
Earnings (loss) per share: Basic earnings (loss) per share is calculated by dividing the net income or loss attributable to common shareholders of the Company by the weighted average number of common shares outstanding
during the period. Diluted earnings (loss) per share is calculated by dividing the net income or loss attributable to common shareholders of the Company by the weighted average number of common shares outstanding, after the
adjustment for the effects of potentially issuable shares, such as restricted stock units and stock options with a dilutive effect.
Operating and Reportable Segments: Operating segments, defined as components of the Company that engage in business activities from which they earn revenue and incur expenses, are reported in a manner consistent with the
internal reporting provided to the Chief Operating Decision Maker (“CODM”). The CODM, who is responsible for assessing performance and allocating resources amongst operating segments, is defined as the Chief Executive Officer
(“CEO”) and Chief Operating Officer (“COO”).
F-13
Table of Contents
Considering the anticipated exit from the Fresh Vegetables division, Dole has the following operating and reportable segments: Fresh Fruit, Diversified Fresh Produce – Europe, the Middle East and Africa (“Diversified Fresh
Produce – EMEA”) and Diversified Fresh Produce – Americas and the Rest of the World (“Diversified Fresh Produce – Americas & ROW”). See further detail on operating and reportable segments in Note 6 “Segments”.
Cash and Cash Equivalents: Cash and cash equivalents consist of cash on hand and highly liquid investments, primarily money market funds and time deposits, with original maturities of three months or less. Whenever
outstanding checks exceed cash balances, the balance of the book overdraft is reclassified to accounts payable in the consolidated balance sheets, and changes in book overdraft balances are presented within operating activities within the
consolidated statements of cash flows. Restricted cash was not material as of December 31, 2023 and December 31, 2022.
Short-Term and Long-Term Investments: Dole sponsors various non-qualified benefit and executive compensation plans, with plan assets held in Rabbi Trusts. Short-term investments include the portion of the Rabbi Trust
securities portfolio that approximates the short-term liability of the frozen non-qualified Supplemental Executive Retirement Plan (“SERP”) defined benefit plan and the total liability of the non-qualified deferred compensation Excess
Savings Plan (“ESP”). Long-term investments include the portion of the Rabbi Trust securities portfolio that will be used to fund a portion of the long-term liability of the SERP plan. Securities are recorded at fair value with realized and
unrealized gains and losses included in earnings. Dole estimates the fair value of its investments using prices provided by its custodian. See Note 18 “Fair Value Measurements” for further detail on fair value disclosures.
Trade Receivables: Trade receivables are recognized net of allowances, which approximates fair value. While in certain regions, the Company’s customer base consists of some large, key customers, credit risk related to trade
receivables is mitigated due to the large number of customers dispersed worldwide. To reduce credit risk, Dole performs periodic credit evaluations of its customers but does not generally require advance payments or collateral. Expected
credit losses for newly recognized trade receivables, as well as changes to existing expected credit losses during the period, are recognized in selling, marketing, general and administrative expenses in the consolidated statements of
operations. Refer to Note 8 “Receivables and Allowances for Credit Losses” for further detail on how the Company estimates these credit losses. No individual customer accounted for more than 10.0% of Dole’s revenue during the years
ended December 31, 2023, December 31, 2022 and December 31, 2021, nor accounted for greater than 10.0% of Dole’s account receivables as of December 31, 2023 and December 31, 2022.
Dole regularly sells a portion of its trade receivables under arrangements with third-party financial institutions. The Company accounts for the transfers of trade receivables as sales when it has surrendered control, at which point
the receivables are derecognized. Determining when control has transferred requires evaluation of the nature and extent of the Company’s involvement with the transferred receivables as well as consideration of certain legal and other
factors. See Note 8 “Receivables and Allowances for Credit Losses” for further detail.
Grower Advances: Dole makes advances to third-party growers for various farming needs. Some of these advances are secured with crop harvests or other collateral owned by the growers. Dole monitors these receivables on a
regular basis and estimates expected credit losses for all outstanding grower advances to determine if a related impairment loss and allowance should be recognized. These expected credit losses are evaluated on a case-by-case basis and
are based on historical credit loss information, among other quantitative and qualitative factors. Grower advances are stated at the gross advance amount less allowances for expected credit losses.
Grower advances are disaggregated into short-term advances that mature in one year or less, which are included within grower advance receivables, net, in the consolidated balance sheets and long-term advances that are included
in other assets in the consolidated balance sheets. See Note 8 “Receivables and Allowances for Credit Losses” for further detail on grower advances.
Other Receivables: Other receivables consists primarily of receivables from governmental institutions, hedging receivables and miscellaneous non-trade receivables from customers, suppliers, and other third parties. These
receivables are recorded net of allowances established based on specific account data and factors such as historical losses, current economic conditions, age of receivables, the value of any collateral and payment status compared to
payment terms. Receivables are written off against the allowance once management determines the receivable is uncollectible. See Note 8 “Receivables and Allowances for Credit Losses” for further detail on other receivables.
F-14
Table of Contents
Concentration of Credit Risk: Financial instruments that potentially subject Dole to a concentration of credit risk principally consist of cash equivalents, investments, derivative contracts and grower advances. Credit risk related to
trade receivables is mitigated through the Company’s large customer base and periodic credit valuations. Dole’s cash and investments are maintained with high quality financial institutions. Dole’s derivative contracts, which are discussed
in greater detail below, are with major financial institutions. Dole’s grower advances are principally with farming enterprises and are generally secured by the underlying crop harvests or other collateral.
Inventories: Inventories are valued at the lower of cost or net realizable value. Costs related to fresh produce are determined on the first-in, first-out basis. Specific identification and average cost methods are also used primarily for
certain packing materials and operating supplies. In the normal course of business, the Company incurs certain crop growing costs such as land preparation, planting, fertilization, grafting, pruning and irrigation. Based on the nature of
these costs and type of crop production, these costs may be capitalized into inventory. Generally, all recurring direct and indirect costs of growing crops for fresh produce other than bananas and pineapples are capitalized into inventory.
These costs are recognized into cost of sales during each harvest period. Due to the nature of the Company’s inventory, reserves for excess production and obsolescence are not significant.
Details of inventory in the consolidated balance sheets as of December 31, 2023 and December 31, 2022 were as follows:
Physical goods that have completed production and are held-for-sale in the ordinary course of business are classified as finished products. Inventories classified as raw materials represent goods that will be consumed in production,
such as fresh fruit or vegetables to be modified from their original form and those awaiting packaging, as well as items such as consumer packing, labels and pallets. Goods that are in the course of production are classified as work in
progress. Inventories classified as crop growing costs include costs incurred up to the time crops are produced in commercial quantities. In addition, agricultural and other operating supplies that are consumed indirectly in production,
such as ripening agents, fertilizer and fuel, are also capitalized into inventory.
Assets Held-for-Sale and Actively Marketed Property: Dole reports a business or assets as held-for-sale when management has approved or received approval to sell the business or assets and is committed to a formal plan, the
business or assets are available for immediate sale, the business or assets are being actively marketed, the sale is anticipated to occur during the ensuing year and the other specified criteria for held-for-sale classification are met. In certain
situations when timing of the sale of land is uncertain and held-for-sale criteria are not met, Dole classifies such assets as actively marketed property. A business or assets classified as held-for-sale or land classified as actively marketed
property are recorded at the lower of their carrying amount or estimated fair value less cost to sell. If their carrying amount exceeds their estimated fair value, a loss is recognized. Depreciation is not recorded on assets classified as held-
for-sale or on land improvements associated with actively marketed property. Assets and liabilities related to a business classified as held-for-sale and actively marketed property are segregated in the consolidated balance sheets, and
major classes are separately disclosed in the notes to the consolidated financial statements, commencing in the period in which the business or assets are classified as held-for-sale or actively marketed. See Note 11 “Assets Held-For-Sale
and Actively Marketed Property” for additional detail.
Investments in Unconsolidated Affiliates: Investments in unconsolidated affiliates and joint ventures with ownership by Dole of 20.0% to 50.0% are recorded using the equity method, provided Dole has the ability to exercise
significant influence. In addition, entities in which the Company has variable interests are also recorded using the equity method when it is determined that the Company is not the primary beneficiary in the relationship but has the ability
to exercise significant influence. Under the equity method of accounting, a share of earnings and losses based on Dole’s ownership percentage in the investment is recorded in earnings each period.
F-15
Table of Contents
All material equity method investments have the same fiscal year-end as Dole. Where appropriate, the accounting policies of equity method investments have been adjusted to ensure consistency with the policies adopted by Dole.
All other unconsolidated investments where we do not have the ability to exercise significant influence are recorded at cost less impairment, adjusted for any observable price changes, as their fair value is not readily determinable.
As of December 31, 2023 and December 31, 2022, substantially all of Dole’s investments in unconsolidated affiliates have been accounted for under the equity method.
Dole evaluates its equity method investments and investments held at cost for impairment when facts and circumstances indicate that the carrying value of such investments may not be recoverable. Dole reviews several factors to
determine whether the loss is other than temporary, such as the length and extent of the fair value decline, the financial condition and near-term prospects of the investee and whether Dole has the intent to sell or will be required to sell
before the investment’s anticipated recovery. If a decline in fair value is determined to be other than temporary, an impairment charge is recorded in the consolidated statements of operations.
Property, Plant and Equipment: Property, plant and equipment is stated at cost plus any asset retirement costs, less accumulated depreciation. Depreciation is computed using the straight-line method over the estimated useful lives
of these assets. Dole reviews long-lived assets to be held and used for impairment whenever events or changes in circumstances indicate that the carrying amount of the asset group may not be recoverable. If an evaluation of
recoverability is required, the estimated undiscounted future cash flows directly associated with the asset are compared to the asset’s carrying amount. If this comparison indicates that there is an impairment, the amount of the impairment
is calculated by comparing the carrying value to discounted expected future cash flows or comparable market values, depending on the nature of the asset group. Routine maintenance and repairs are expensed as incurred.
For the years ended December 31, 2023 and December 31, 2022, Dole recognized write-down and impairment losses of approximately $2.2 million and $0.4 million, respectively. Dole did not recognize any write-down and
impairment losses for the year ended December 31, 2021.
See Note 12 “Property, Plant and Equipment” for additional detail on the major classes of property, plant and equipment and their respective useful lives.
Dry-Docking Costs: Dole incurs costs for planned major maintenance activities related to its vessels during regularly scheduled dry dockings that occur approximately every 2 to 7 years, depending on the age of the vessel. Costs
incurred during the dry-docking period, such as overhaul costs, are capitalized and amortized to the next overhaul. Routine repairs and maintenance related to vessels are expensed as incurred and included in cost of sales in the
consolidated statements of operations. Amortization costs related to dry-docking are also included in cost of sales in the consolidated statements of operations.
Leases: Dole leases fixed assets for use in operations where leasing offers advantages of operating flexibility and is less expensive than alternative types of funding. Dole also leases land in countries where land ownership by
foreign entities is restricted or where purchasing is not a viable option.
Dole’s leases are evaluated at inception and any subsequent modification and, depending on the lease terms, are classified as either finance or operating leases. For leases with terms greater than one year, the Company recognizes a
related asset (“right-of-use asset”) and obligation (“lease liability”) on the lease commencement date, calculated as the present value of lease payments over the lease term. Right-of-use assets represent the right to use an underlying asset
for the lease term, and lease liabilities represent the obligation to make lease payments arising from the lease. Dole’s leases may include rental escalation clauses, renewal options and termination options that are factored into the
determination of lease payments and lease term when appropriate. Dole’s lease agreements do not contain any residual value guarantees. The majority of Dole’s leases are classified as operating leases. Dole’s principal operating leases are
for vessel containers that do not meet the finance lease criteria, ports, land and warehouse facilities. Dole’s finance leases primarily consist of vessel containers and machinery and equipment that meet the finance lease criteria. Dole’s
decision to exercise any renewal options is primarily dependent on the level of business conducted at the location and the profitability of the renewal.
The Company has elected to account for lease and non-lease components as a single lease component in contracts where Dole is the lessee. When available, the rate implicit in the lease is used to discount lease payments to present
value; however, most of Dole’s leases do not provide a readily determinable implicit rate. Therefore, the Company’s incremental borrowing rate is used to discount the lease payments based on information available at lease
commencement.
F-16
Table of Contents
When the Company acts as a lessor for contracts that contains a lease component, the Company allocates the consideration in the contract to each lease component on the basis of their relative standalone prices at inception or
modification of the lease. Also, the Company determines whether each lease is classified as a sales-type, direct financing or an operating lease. Dole recognizes income earned from operating leases on a straight-line basis over the lease
term as a part of other income, net, in the consolidated statements of operations.
Goodwill and Intangible Assets: Goodwill represents the excess cost of a business acquisition over the fair value of the net assets acquired, including the amount assigned to identifiable intangible assets. Dole tests goodwill for
impairment at the reporting unit level annually on the first day of the fourth quarter of each fiscal year and when there is an indicator of impairment. Dole defines each of its operating business segments as reporting units. The reporting
units with allocated goodwill include Fresh Fruit, Diversified Fresh Produce – EMEA, and Diversified Fresh Produce – Americas & ROW. Other indefinite-lived intangible assets are also reviewed for impairment annually on the first day
of the fourth quarter of each fiscal year, or more frequently if impairment indicators arise.
For the annual goodwill impairment test, management may assess qualitative factors to determine whether it is more likely than not that the fair value of each reporting unit with goodwill is less than its carrying amount. These
qualitative factors include market and industry considerations, overall financial performance and other relevant events and factors affecting the reporting unit. If the results of the qualitative assessment indicate that it is more likely than
not that the fair value of a reporting unit is less than its carrying amount, a quantitative assessment is required for that reporting unit. Alternatively, the Company may bypass the qualitative assessment and perform a quantitative
assessment.
In fiscal year 2023, Dole elected to bypass the qualitative test and performed a quantitative goodwill impairment assessment.
The quantitative assessment involves comparing the fair value of each reporting unit with allocated goodwill to its carrying amount. If the carrying amount of a reporting unit exceeds it estimated fair value, an impairment of
goodwill is recognized up to the amount of goodwill allocated to the reporting unit. Fair values for reporting units are generally determined using a discounted cash flow model involving market multiples or appraised values, as
appropriate. The present value models involve inputs which are sensitive and judgmental in nature, such as estimates of future financial performance, long-term cash flow projections and discount rates.
Dole’s other indefinite-lived intangible assets, primarily consisting of the DOLE brand, are considered to have an indefinite life, because they are expected to generate cash flows indefinitely and, as such, are not amortized. The
Company may perform a qualitative assessment for each indefinite-lived intangible asset to determine if it is more likely than not that the carrying amount of the asset exceeds its fair value, which would require a quantitative assessment.
The quantitative test compares the fair value of the indefinite-lived intangible to its carrying amount. If the carrying amount exceeds fair value, an impairment loss is recognized. Dole may also elect to bypass the qualitative assessment
and perform a quantitative assessment.
In fiscal year 2023, Dole elected to bypass the qualitative assessment and perform a quantitative test for the DOLE brand. Dole determined the fair value of the DOLE brand by using a relief-from-royalty method, involving inputs
such as projected revenue and long-term growth rates, royalty rates and discount rates.
Dole’s definite-lived intangible assets include customer relationships, supplier relationships and local brands, that are initially recorded at fair value and amortized on a straight-line basis over 3 to 15 years.
For the years ended December 31, 2023, December 31, 2022 and December 31, 2021, the Company determined there was no impairment of goodwill or intangible assets.
Bank Overdrafts: The Company and its subsidiaries have a number of bank overdraft facilities which are primarily used to fund seasonal working capital requirements. The total of these facilities as of December 31, 2023 and
December 31, 2022 was $11.5 million and $8.6 million, respectively. The facilities contain covenants customary for unsecured facilities of this kind, including financial covenants on maximum leverage and minimum interest cover. Bank
overdrafts are classified as a current liability in the consolidated balance sheets. See Note 14 “Debt” for additional detail.
F-17
Table of Contents
Debt: Debt is carried at the principal amount borrowed, including unamortized discounts and premiums and debt issuance costs, when applicable. Debt discounts and issuance costs are amortized over the term of the debt
agreement using the effective interest method and are presented as a direct reduction of debt in the consolidated balance sheets, except for those issuance costs related to revolving credit facilities or line-of-credit arrangements which are
recorded as a prepaid asset in the consolidated balance sheets. See Note 14 “Debt” for additional detail.
Derivative Financial Instruments: Dole holds derivative instruments to hedge against risks in foreign currency exchange, fuel costs and interest rates on long-term borrowings. Dole estimates the fair value of its derivatives,
including any credit valuation adjustments, using market-based inputs. All realized gains and losses under designated cash flow hedges are included in earnings in the consolidated statements of operations, and unrealized gains and losses
are included in other comprehensive income (loss). For all other hedges not designated as hedging instruments, all realized and unrealized gains and losses are recorded in the same line item within the consolidated statements of
operations as the activity that is being hedged from a financial risk management perspective. We also classify the cash flows from our cash flow hedges and fair value hedges in the same category as the items being hedged on our
consolidated statements of cash flows. See Note 17 “Derivative Financial Instruments” for additional detail on derivative instruments.
Fair Value Hedges: The Company enters into fair value hedges to hedge foreign currency exposure of certain non-functional currency denominated assets and liabilities. Dole enters into foreign currency forward contracts
primarily to hedge the changes in fair value of certain intercompany loans and trade receivables denominated in a foreign currency.
Cash Flow Hedges: The Company enters into cash flow hedges to hedge against variability in certain expected future cash flows related to foreign currency exchange, fuel costs and interest rates on long-term borrowings. Dole
enters into foreign currency exchange forward contracts and option contracts to hedge a portion of its forecasted revenue, cost of sales and operating expense. In addition, Dole incurs significant fuel costs transporting products from the
sourcing location to the end customer. To mitigate the price uncertainty of future purchases of bunker fuel, Dole enters into bunker fuel swap contracts. Similarly, in order to mitigate interest rate uncertainty on long-term debt, Dole enters
into interest rate swap agreements.
Fair Value of Financial Instruments: Dole’s financial instruments primarily comprise of cash and cash equivalents, short and long-term investments, short-term trade and grower receivables, trade payables and notes receivable, as
well as long-term grower receivables, finance lease obligations, asset-based loans, contingent consideration and term loan facilities. The carrying amounts of short-term instruments, excluding Dole’s short-term Rabbi Trust investments
that are recorded at fair value, approximate fair value because of their short maturity. Dole’s contingent consideration and long-term Rabbi Trust investments are recorded at fair value. Carrying amounts of other long-term financial
instruments, excluding Dole’s term loans, approximate fair value, since the instruments bear interest at variable or fixed rates which approximate market rates. See Note 18 “Fair Value Measurements” for additional detail.
Dole also holds retirement plan assets which are measured at fair value. Dole estimates the fair value of its retirement plan assets based on quoted market prices, dependent on availability. In instances where quoted market prices
are not readily available, the fair value of the investment securities is estimated based on pricing models using observable or unobservable inputs. As a practical expedient, the Company uses net asset value (“NAV”) to measure certain
investments without a readily determinable fair value within the Company’s pension asset portfolio. See Note 15 “Employee Benefit Plans” for additional detail.
Foreign Currency Exchange: The functional currency of Dole is the U.S. dollar. For subsidiaries with transactions that are denominated in a currency other than the functional currency, the net foreign currency exchange transaction
gains or losses resulting from the remeasurement of monetary assets and liabilities to the functional currency are included in the consolidated statements of operations. Transaction gains and losses were not material in the years ended
December 31, 2023, December 31, 2022 and December 31, 2021. Net foreign currency exchange gains or losses resulting from the translation of assets and liabilities of foreign subsidiaries whose functional currency is not the U.S. dollar
are recorded as a part of the cumulative translation adjustment in stockholders’ equity.
F-18
Table of Contents
Pension and Postretirement Benefits: Dole sponsors several defined benefit pension plans and other postretirement benefit (“OPRB”) plans covering certain eligible employees. The funded status of these plans is recorded on the
consolidated balance sheets, with overfunded plans presented in other assets and underfunded plans presented in pension and postretirement benefit liabilities. Net benefit obligations of underfunded plans that are due over the next year
are presented as current liabilities. Actuarial assumptions including discount rates, salary increases, expected return on plan assets, mortality and other factors are used to measure the funded status and annual expense of the plans.
Obligations and any assets associated with pension and postretirement benefit plans are measured at fair value as of December 31 each year. See Note 15 “Employee Benefit Plans” for additional detail.
Stock-Based Compensation: Stock-based compensation for Dole consists of restricted stock units (“RSUs”) and stock options. At their grant date, RSUs with only a service condition are valued using the current share price, RSUs
with a market condition are valued using a Monte Carlo simulation approach and stock options are valued using the Black Scholes pricing model. Stock-based compensation expense is recognized over the requisite service period, which
is the vesting period of each award.
Redeemable Noncontrolling Interest (“NCI”): If a put option is held by a NCI in a subsidiary undertaking, whereby the holder of the put option can require Dole to acquire the NCI's ownership in the subsidiary at a future date, the
Company examines the nature of such a put option to determine whether the put option is a separate financial instrument to, or embedded within, the NCI.
As the Company’s NCI containing put options have exercise prices based on future earnings of the related consolidated subsidiaries and meet the criteria for mezzanine classification, they are classified as redeemable NCI as
mezzanine equity in the consolidated balance sheets. The options do not contain a limit to the amount that the Company could be required to pay upon exercise by the holder, and the embedded put and call features do not meet the criteria
for bifurcation.
Both permanent and mezzanine-classified NCI are measured at fair value on the acquisition date. Each reporting period, net income and comprehensive income of a consolidated subsidiary is allocated to the controlling interest and
NCI. When redemption of a mezzanine-classified NCI becomes probable, the NCI is accreted to its redemption value with the offset recorded to additional paid-in-capital in the consolidated statements of stockholders’ equity. These
changes are accreted over the period prior to the earliest redemption date or recognized immediately as redemption occurs.
As of December 31, 2023, the $34.2 million of redeemable NCI in the consolidated balance sheets represents the carrying value of the redeemable NCI. The total gross redemption value of the instruments was $40.3 million, had
the options been exercised as of December 31, 2023, payable over a maximum of three years.
Guarantees: Dole makes guarantees as part of its normal business activities. Dole’s guarantees include guarantees of the indebtedness of some of its key fruit suppliers and other entities integral to Dole’s operations. Dole also
issues bank guarantees as required by certain regulatory authorities, suppliers and other operating agreements, as well as to support the borrowings, leases and other obligations of its subsidiaries. The majority of Dole’s guarantees relate
to guarantees of subsidiary obligations and are scoped out of the initial measurement and recognition accounting requirements related to guarantees. See Note 19 “Contingencies” for further detail on the Company’s guarantees.
Business Combinations: Business combinations are accounted for using the acquisition method of accounting. Application of this method of accounting requires that (i) identifiable assets acquired (including identifiable intangible
assets) and liabilities assumed generally be measured at fair value as of the acquisition date, and (ii) the excess of the purchase price over the net fair value of identifiable assets acquired and liabilities assumed be recognized as goodwill.
Determining the fair value of assets acquired and liabilities assumed and the allocation of the purchase price requires management to use significant judgment and estimates, especially with respect to intangible assets. Estimates in
valuing certain identifiable assets include, but are not limited to, the selection of valuation methodologies, estimates of future revenue and cash flows, expected long-term market growth, future expected operating expenses, costs of
capital and appropriate discount rates. Management's estimates of fair value are based upon assumptions believed to be reasonable but which are inherently uncertain and unpredictable, and as a result, actual values may differ from these
estimates. During the measurement period, certain adjustments may be recorded to the carrying fair value of the assets acquired and liabilities assumed with the corresponding offset to goodwill. After the measurement period, which
could last up to one year after the transaction date, all adjustments are recorded in the consolidated statements of operations.
F-19
Table of Contents
The NCI in acquired businesses are measured at fair value at the date of acquisition and are separately presented within stockholders' equity, distinct from equity attributable to Dole. Each reporting period, net income (loss) and
comprehensive income (loss) of consolidated subsidiaries in which NCI are held are attributed to that NCI based on their equity interest in each consolidated subsidiary.
Contingent consideration is recognized and measured at fair value at the acquisition date. Any obligation of the Company to pay contingent consideration in connection with a business combination is classified as a liability as
required by ASC 480, Distinguishing Liabilities from Equity; otherwise, it is classified as equity. Post-combination accounting for contingent consideration is impacted by its initial classification. When it is classified as a liability, it is
remeasured at each reporting date at fair value, and any changes in fair value are reported within earnings. When it is classified as equity, the contingent consideration is not subsequently remeasured, and its settlement is accounted for
within equity. Total contingent consideration as of December 31, 2023 and December 31, 2022 amounted to $9.1 million and $6.8 million, respectively. Dole’s contingent consideration represents the provision for the net present value of
the amounts expected to be payable for acquisitions which are subject to earn-out arrangements and is expected to be paid between 2024 and 2027.
See Note 4 “Acquisitions and Divestitures” for further detail on the Acquisition that occurred in the year ended December 31, 2021.
Contingencies: Estimated losses from contingencies are recognized at fair value if it is probable that an asset has been impaired or a liability has been incurred as of the date of the financial statements and the amount of that loss
can be reasonably estimated. Gain contingencies are not recognized until realized. Judgment is used to assess whether a loss contingency is probable and estimable, and actual results may differ from that estimate. See Note 19 “
Contingencies” for further detail on the Company’s contingencies.
ASU 2020-04, ASU 2021-01, and ASU 2022-06 – Reference Rate Reform (Topic 848)
The Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) 2020-04, Reference Rate Reform (Topic 848) – Facilitation of the Effects of Reference Rate Reform on Financial Reporting, in
March 2020 and subsequently issued ASU 2021-01 in January 2021 and ASU 2022-06 in December 2022. The amendments in these updates provide optional expedients and exceptions related to the accounting for contracts and hedging
relationships that reference the London Interbank Offered Rate (“LIBOR”) or another reference rate expected to be discontinued due to reference rate reform if certain criteria are met.
As of June 2023, Dole modified all of its borrowings and interest rate swaps that referenced LIBOR to now reference the Secured Overnight Financing Rate (“SOFR”). The Company has adopted certain elections under this
guidance to account for the debt modifications as continuations of the existing agreements and maintain the hedge effectiveness of its interest rate swaps. The adoption of these elections did not impact Dole’s financial condition, results of
operations, cash flows and related disclosures.
ASU 2023-07 – Segment Reporting (Topic 280): Improvements to Reportable Segment Disclosures
In November 2023, the FASB issued ASU 2023-07, Segment Reporting (Topic 280): Improvements to Reportable Segment Disclosures, which enhances interim and annual segment disclosure requirements, including disclosure of
certain significant segment expenses. The amendments in this update are effective for fiscal years beginning after December 15, 2023, and interim periods within fiscal years beginning after December 15, 2024, with early adoption
permitted. We are evaluating the potential impact of the new requirements on our segment disclosures.
ASU 2023-09 – Income Taxes (Topic 740): Improvements to Income Tax Disclosures
In December 2023, the FASB issued ASU 2023-09, Income Taxes (Topic 740): Improvements to Income Tax Disclosures, which enhances certain income tax disclosure requirements, including additional disclosure related to the
income tax rate reconciliation and income taxes paid. The amendments in this update are effective for annual periods beginning after December 15, 2024, with early adoption permitted. We are evaluating the potential impact of the new
requirements on our income tax disclosures.
F-20
Table of Contents
On January 30, 2023, Dole entered into the Fresh Express Agreement, pursuant to which Fresh Express has agreed to acquire the Fresh Vegetables division for approximately $293.0 million in cash, subject to certain adjustments
set forth in the Fresh Express Agreement. As of December 31, 2023, the Company concluded that it would dispose of the Fresh Vegetables division, either through closing of the Fresh Express Agreement or through completion of an
alternative transaction, by the end of fiscal year 2024. See Note 25 “Subsequent Events” for further detail.
The Fresh Vegetables division comprises substantially all of the assets and all of the liabilities of the former Fresh Vegetables reportable segment. Certain assets of the Fresh Vegetables reportable segment that are excluded from the
transaction are not material, individually or in the aggregate.
The Company determined that exiting the Fresh Vegetables business represents a strategic shift that will have a material effect on the Company’s operations and results. Despite the outcome of the Fresh Express Agreement, the
Company is committed to exiting the business through the Vegetables exit process. As such, the results of the Fresh Vegetables division have been classified as discontinued operations in the consolidated statements of operations for the
periods presented, and its related assets and liabilities have been classified as held for sale in the consolidated balance sheets as of March 31, 2023 and onwards. As a result, depreciation and amortization on long-lived assets have ceased
as of March 31, 2023.
Upon exiting the business, Dole does not anticipate having significant continuing involvement with the Fresh Vegetables division and any such involvement will be limited to certain transition service arrangements that are not
expected to be material to Dole’s continuing operations.
The following tables present the results of the Fresh Vegetables division as reported in loss from discontinued operations, net of income taxes, in the consolidated statements of operations and the carrying value of assets and
liabilities as presented within assets and liabilities held for sale in the consolidated balance sheets.
Year Ended
December 31, 2023 December 31, 2022 December 31, 2021
(U.S. Dollars in thousands)
Revenues, net $ 1,143,239 $ 1,205,902 $ 510,663
Cost of sales (1,102,761) (1,211,071) (505,528)
Gross profit (loss) 40,478 (5,169) 5,135
Selling, marketing, general and administrative expenses (45,872) (55,520) (26,579)
Transaction costs (11,491) — —
Gain (loss) on asset sales 50 (150) 20
Operating (loss) from discontinued operations (16,835) (60,839) (21,424)
Other income, net 821 722 223
Net interest expense1 (6,284) (4,879) (1,905)
Loss from discontinued operations before income taxes (22,298) (64,996) (23,106)
Income tax benefit 452 8,456 2,353
Less: Loss from discontinued operations attributable to noncontrolling interests 28 93 185
Loss from discontinued operations, net of income taxes $ (21,818) $ (56,447) $ (20,568)
1 Net interest expense presented within discontinued operations is net of interest income and includes the allocated interest expense related to the portion of Term Loan A and Term Loan B required to be repaid if the closing of the Fresh Express Transaction had occurred. See Note 14 “Debt” for
further detail.
F-21
Table of Contents
1Fresh Vegetables currently sells its trade receivables under the facility with recourse provisions described in Note 8 “Receivables and Allowances for Credit Losses.” Upon exiting the Fresh Vegetables business, Fresh Vegetables’ position under the facility will be settled.
On July 29, 2021, the Merger was completed between Total Produce and Legacy Dole and on July 30, 2021, the newly created entity, Dole plc, consummated its IPO on the NYSE under the ticker symbol “DOLE”.
On February 1, 2018, Total Produce entered into a Securities Purchase Agreement with the C&C Parties to purchase 45.0% of Legacy Dole for $300.0 million (“Original Transaction”) with options to acquire the remaining 55.0%
in future years. The Original Transaction closed on July 31, 2018, and Total Produce accounted for its investment in Legacy Dole under the equity method of accounting until the Merger and IPO Transaction. On July 29, 2021, the Merger
between Total Produce and Legacy Dole occurred in the following manner: (i) shares in Total Produce were exchanged for shares in Dole plc through a scheme of arrangement at a fixed exchange ratio, and (ii) Legacy Dole merged with a
subsidiary of Dole plc via a reverse triangular merger. Through the Merger, Total Produce shareholders and C&C Parties received 82.5% and 17.5%, respectively, of the shares in Dole plc outstanding immediately prior to the IPO
Transaction.
As a result of the Merger, Total Produce acquired the remaining 55.0% of Legacy Dole in exchange for stock consideration along with the forgiveness of certain indemnities and loans owed by C&C Parties. Total consideration was
calculated as $576.2 million and is inclusive of an implied equity value for Legacy Dole based on the IPO price of $16.00, after considering the forgiveness of certain indemnities and loans owed by C&C Parties.
Through the IPO Transaction, the Company incurred underwriting fees and other issuance costs of $29.6 million, which were recorded in equity as a reduction of gross proceeds. For the year ended December 31, 2021, the
Company also incurred other Merger and IPO costs of $30.1 million, which are recorded in merger, transaction and other related costs in the consolidated statements of operations.
F-22
Table of Contents
At the time of the Merger, Total Produce’s investment in Legacy Dole was approximately $259.0 million. Based on the implied equity value of the stock consideration for the existing 45.0% equity interest, the Company recognized
an impairment loss of $122.9 million. The Company also recognized a gain on the settlement of preexisting contractual arrangements of $93.0 million. The net loss on Legacy Dole arising from the step-up acquisition was $4.0 million,
after considering the impairment, offset by the gain on the preexisting contractual arrangements and other items. The net loss was included in equity method earnings in the consolidated statements of operations. See Note 22 “Investments
in Unconsolidated Affiliates” for additional detail on the calculation of the net loss on Legacy Dole arising from the step-up acquisition.
The purchase price of Legacy Dole exceeded the fair value of the identifiable net assets and, accordingly, $273.3 million was allocated to goodwill, none of which is tax deductible. The goodwill arising from the Acquisition
consists largely of the synergies and economies of scale expected from combining the operations of Total Produce and Legacy Dole. The goodwill has been assigned to the Fresh Fruit operating segment. The Company also acquired
$310.7 million of intangible assets which primarily relate to the indefinite-lived DOLE brand of $306.3 million. See Note 13 “Goodwill and Intangible Assets” for further detail.
Amount
(U.S. Dollars in thousands)
Equity instruments $ 576,186
Cash acquired (108,973)
Net intercompany payable to Legacy Dole at acquisition (6,900)
Net consideration $ 460,313
The purchase price was allocated to the assets and liabilities acquired in the Acquisition as follows:
Amount
Note that these assets and liabilities are inclusive of Fresh Vegetables which is classified as held for sale in the consolidated balance sheets as of December 31, 2022. Other assets include long-term investments, investments in
unconsolidated affiliates, actively marketed property, operating lease right-of-use assets, deferred tax assets and other long-term assets. Other liabilities includes long-term operating lease liabilities, deferred tax liabilities, long-term
pension and postretirement benefits, and other long-term liabilities.
F-23
Table of Contents
Included within property, plant and equipment is $68.1 million of previously uncapitalized pineapple costs that were recognized to reflect the value associated with the pineapple bearer plant. The fair value uplift related to these
bearer plants was reversed and recognized to cost of sales on a straight-line basis over the life of these plants, which was complete as of December 31, 2022. The total incremental charge to cost of sales related to this uplift was
$39.7 million and $28.4 million for the years ended December 31, 2022 and December 31, 2021, respectively.
Following the acquisition date, the operating results of Legacy Dole have been included in the consolidated financial statements. For the period from the acquisition date through December 31, 2021, revenue attributable to Legacy
Dole was $1.9 billion and net loss attributable to Legacy Dole was $80.6 million, inclusive of $35.2 million related to the amortization of the inventory step-up to recognize the biological transformation of pineapple and banana crops and
$39.7 million related to the amortization of the fixed asset step-up of pineapple bearer plants.
The following table represents the pro forma revenue and earnings, including material and nonrecurring pro forma adjustments, of the combined company, assuming the Acquisition Date was January 1, 2020. The pro forma
revenue presented below includes the revenue from the discontinued operations of Fresh Vegetables.
The Company normally engages in acquisitions to grow its business and product offerings. The majority of acquisitions represent an increase of an existing ownership percentage to obtain control of entities previously accounted
for under the equity method. See Note 22 “Investments in Unconsolidated Affiliates” for additional detail on acquisitions and divestitures related to investments in unconsolidated affiliates.
In the year ended December 31, 2023, the Company acquired ownership interests in a number of subsidiaries, none of which were material, individually or in the aggregate. Total purchase consideration for these acquisitions was
$9.9 million, and total goodwill acquired was $9.9 million. See Note 13 “Goodwill and Intangible Assets.” Additionally, in the year ended December 31, 2023, the Company disposed of ownership interests in a subsidiary to a
noncontrolling interest. Aggregate consideration received was not material, and there was no gain or loss on the disposal.
For the year ended December 31, 2022, the Company acquired additional ownership interests in a subsidiary. Aggregate purchase consideration and net assets acquired were not material, and total goodwill acquired was
$1.2 million. See Note 13 “Goodwill and Intangible Assets.” Additionally, in the year ended December 31, 2022, the Company disposed of a subsidiary. Aggregate consideration received and net assets disposed were not material, and
there was a gain on the disposal of $0.2 million.
For the year ended December 31, 2021 there were no other material acquisitions, aside from those described in Note 22 “Investments in Unconsolidated Affiliates.” Additionally, the Company divested of two subsidiaries.
Aggregate consideration received, net assets disposed and the net gain recognized for these divestitures were not material.
F-24
Table of Contents
NOTE 5 — REVENUE
The following table presents the Company's disaggregated revenue by similar types of products and services for the years ended December 31, 2023, December 31, 2022 and December 31, 2021:
Year Ended
December 31, 2023 December 31, 2022 December 31, 2021
(U.S. Dollars in thousands)
Diversified produce $ 5,156,386 $ 5,062,985 $ 4,740,812
Tropical fruit 2,697,228 2,580,192 982,652
Health foods and consumer goods 137,000 122,733 136,149
Commercial cargo 184,944 194,308 78,489
Other 69,710 64,185 5,637
Total revenue, net $ 8,245,268 $ 8,024,403 $ 5,943,739
The following table presents the Company's disaggregated revenue by channel for the years ended December 31, 2023, December 31, 2022 and December 31, 2021:
Year Ended
December 31, 2023 December 31, 2022 December 31, 2021
NOTE 6 — SEGMENTS
Accounting for the anticipated exit from the Fresh Vegetables division, Dole has the following three reportable segments, which align with the manner in which the business is managed: Fresh Fruit, Diversified Fresh Produce –
EMEA and Diversified Fresh Produce – Americas & ROW. The Company’s reportable segments are based on (i) financial information reviewed by the Chief Operating Decision Maker (“CODM”), defined as the Chief Executive Officer
(“CEO”) and Chief Operating Officer (“COO”), (ii) internal management and related reporting structures and (iii) the basis upon which the CODM assesses performance and allocates resources.
Fresh Fruit: The Fresh Fruit reportable segment primarily sells bananas and pineapples which are sourced from local growers or Dole-owned and leased farms, predominately located in Latin America, and sold throughout North
America, Europe, Latin America and Asia. This segment also operates a commercial cargo business, which offers available capacity to transport third party cargo on company-owned vessels that are primarily used internally for
transporting bananas and pineapples between Latin America, North America and Europe.
Diversified Fresh Produce – EMEA: The Diversified Fresh Produce – EMEA reportable segment includes Dole’s Irish, Dutch, Spanish, Portuguese, French, Italian, U.K., Swedish, Danish, South African, Czech, Slovakian, Polish
and Brazilian businesses, the majority of which sell a variety of imported and local fresh fruits and vegetables through retail, wholesale and, in some instances, food service channels across the European marketplace.
Diversified Fresh Produce – Americas & ROW: The Diversified Fresh Produce – Americas & ROW reportable segment includes Dole’s U.S., Canadian, Chilean, Peruvian, Mexican, Argentinian and Indian businesses, all of which
market globally and locally-sourced fresh produce from third-party growers or Dole-owned farms through retail, wholesale and food service channels globally.
F-25
Table of Contents
Prior to the acquisition of Legacy Dole, Total Produce considered its 45.0% share in Legacy Dole to be a reportable segment. As such, operating results prior to the Acquisition Date related to Total Produce’s share in Legacy Dole
are separately reported.
Segment performance is evaluated based on a variety of factors, of which revenue and adjusted earnings before interest expense, income taxes and depreciation and amortization (“Adjusted EBITDA”) are the financial measures
regularly reviewed by the CODM. Management does not use assets by segment to evaluate performance or allocate resources. Therefore, assets by segment are not disclosed.
All transactions between reportable segments are eliminated in consolidation. Segment results for the years ended December 31, 2023, December 31, 2022 and December 31, 2021 have been updated to remove the discontinued
operations of the Fresh Vegetables division, and corporate costs previously allocated to the Fresh Vegetables reportable segment have been reallocated to the remaining reportable segments.
Adjusted EBITDA is reconciled below to net income by (1) subtracting the loss from discontinued operations, net of income taxes; (2) subtracting the income tax expense or adding the income tax benefit; (3) subtracting interest
expense; (4) subtracting depreciation charges; (5) subtracting amortization charges on intangible assets; (6) subtracting mark to market losses or adding mark to market gains related to unrealized impacts from derivative instruments and
foreign currency denominated borrowings, realized impacts on noncash settled foreign currency denominated borrowings, net foreign currency impacts on liquidated entities and fair value movements on contingent consideration; (7)
other items which are separately stated based on materiality, which, during the years ended December 31, 2023, December 31, 2022 and December 31, 2021, included adding or subtracting asset write-downs from extraordinary events,
net of insurance proceeds, adding the gain or subtracting the loss on the disposal of business interests, subtracting the incremental costs from the fair value uplift for biological assets related to the acquisition of Legacy Dole, adding the
gain or subtracting the loss on the sale of investments accounted for under the equity method, adding the gain or subtracting the loss on asset sales for assets held for sale and actively marketed property, subtracting restructuring charges
and costs for legal matters not in the ordinary course of business, subtracting charges for impairment of property, plant and equipment and subtracting costs incurred for the cyber-related incident; and (8) the Company’s share of these
items from equity method investments.
F-26
Table of Contents
The following table provides revenue and Adjusted EBITDA by reportable segment:
Year Ended
December 31, December 31, December 31,
2023 2022 2021
F-27
Table of Contents
The Company is headquartered and domiciled in Ireland. Revenue by geographic location based on the end customer for the years ended December 31, 2023, December 31, 2022 and December 31, 2021 was as follows:
Year Ended
December 31, 2023 December 31, 2022 December 31, 2021
(U.S. Dollars in thousands)
United States $ 3,189,105 $ 3,272,943 $ 1,831,591
U.K. 858,652 782,497 796,474
Spain 659,072 615,417 637,123
Sweden 598,801 574,682 613,911
Ireland 445,395 394,981 416,410
Other 2,494,243 2,383,883 1,648,230
Total revenue, net $ 8,245,268 $ 8,024,403 $ 5,943,739
Long-lived assets are comprised of property, plant and equipment, net. Long-lived assets by geographic location as of December 31, 2023 and December 31, 2022 were as follows:
F-28
Table of Contents
Included in other income, net, in Dole’s consolidated statements of operations were the following items:
Year Ended
December 31, 2023 December 31, 2022 December 31, 2021
(U.S. Dollars in thousands)
Rental income $ 8,633 $ 11,005 $ 4,979
Unrealized gain (loss) on foreign currency denominated borrowings (5,467) 4,276 5,453
Realized gain on fair value hedges 639 — —
Unrealized gain (loss) on fair value hedges (843) 469 —
Non-cash realized gain on foreign currency denominated borrowings — 1,029 —
Gain (loss) on investments 1,872 (3,835) (286)
Non-service components of net periodic pension benefit (cost) (1,721) 1,573 176
Gain (loss) on contingent consideration 91 14 (1,036)
Other 1,595 (3,931) (851)
Other income, net $ 4,799 $ 10,600 $ 8,435
Trade Receivables
Trade receivables as of December 31, 2023 and December 31, 2022 were $538.2 million and $610.4 million, net of allowances for credit losses of $18.4 million and $18.0 million, respectively. Trade receivables are also recorded
net of allowances for sales deductions under the scope of ASC 606, Revenue from Contracts with Customers.
As a result of Dole’s robust credit monitoring practices, the industry in which it operates and the nature of its customer base, the credit losses associated with trade receivables have historically not been significant in comparison to
net revenue and gross trade receivables. The allowance for credit losses on trade receivables is measured on a collective pool basis, when the Company believes similar risk characteristics exist among customers. Trade receivables that do
not share similar risk characteristics are evaluated on a case-by-case basis. Dole estimates expected credit losses based on ongoing monitoring of customer credit, macroeconomic indicators and historical credit losses based on customer
and geographic region.
F-29
Table of Contents
A rollforward of the allowance for credit losses for trade receivables for the years ended December 31, 2023 and December 31, 2022 was as follows:
Amount
(U.S. Dollars in thousands)
Balance as of December 31, 2021 $ (21,416)
Additional provisions in the period (9,624)
Recoveries of amounts previously reserved 7,477
Write-offs 2,120
Net impact from acquisitions and divestitures 36
Balance sheet reclassifications 2,256
Foreign exchange impact 1,150
Balance as of December 31, 2022 (18,001)
Net impact from acquisitions and divestitures (179)
Additional provisions in the period (10,500)
Recoveries of amounts previously reserved 8,497
Write-offs 3,725
Balance sheet reclassifications (1,405)
Foreign exchange impact (497)
Balance as of December 31, 2023 $ (18,360)
Dole utilizes third-party trade receivables sales arrangements to help manage its liquidity. Certain arrangements contain recourse provisions in which Dole’s maximum financial loss is limited to a percentage of receivables sold
under the arrangements. Dole derecognizes all sold receivables from the consolidated balance sheets, as it accounts for the transfers as sales under ASC 860, Transfers and Servicing.
Certain arrangements contain recourse provisions relating to the credit losses of sold receivables in which Dole’s maximum financial loss is limited to a percentage of receivables sold under the arrangements. On May 23, 2022,
Dole entered into a new three-year committed trade receivables arrangement with recourse provisions. The maximum amount of receivables that can be sold under the new arrangement at any time is $255.0 million. Upon the execution of
the new arrangement and initial derecognition of sold receivables, the Company received total gross cash proceeds $206.9 million, of which $39.3 million was used to repay certain facilities that were terminated as a result of the new
agreement.
Total facility amounts under these recourse trade receivable arrangements were $255.0 million as of December 31, 2023. Total facility amounts under other non-recourse trade receivables arrangements were $30.0 million as of
December 31, 2023 and December 31, 2022. The non-recourse facilities extend indefinitely but may be cancelled at any time by Dole or the banks.
For those arrangements with recourse provisions, a recourse liability is recorded at fair value and remeasured quarterly to take into account activity during the period, as well as changes in the estimate for anticipated credit losses.
Changes in the recourse liability’s value attributable to revised estimates of anticipated credit losses have been and are expected to be immaterial, as the underlying receivables are short-term and do not have a high credit risk profile. The
valuation of the recourse liability falls within Level 3 of the fair value hierarchy.
As of December 31, 2023, the Company had derecognized trade receivables under non-recourse facilities and facilities with recourse provisions of $13.2 million and $246.8 million, respectively. As of December 31, 2022, the
Company had derecognized trade receivables under non-recourse facilities and facilities with recourse provisions of $11.9 million and $237.2 million, respectively. The carrying amount of the related recourse liability for the facilities
with recourse provisions was $4.8 million and $4.5 million as of December 31, 2023 and December 31, 2022, respectively, which includes the amount related to the Fresh Vegetables division. This balance is recorded within accrued
liabilities in the consolidated balance sheets.
F-30
Table of Contents
During the years ended December 31, 2023, December 31, 2022 and December 31, 2021, the Company sold a total of $3.9 billion, $2.8 billion and $1.3 billion, respectively, of trade accounts receivables under these programs in
exchange for cash for the face value of the sold receivables. The fees associated with the sales of such receivables are recorded in interest expense in the consolidated statements of operations and were $14.6 million and $5.3 million for
the years ended December 31, 2023 and December 31, 2022 and not material for the year ended December 31, 2021. The Company continues to service sold receivables, and the fair value of any resulting servicing liability is immaterial.
Fresh Vegetables currently sells its trade receivables under the facility with recourse provisions. The amounts disclosed include trade receivables sold in the Fresh Vegetables division. Upon exiting the Fresh Vegetables business,
Fresh Vegetables’ position under the facility will be settled.
Grower Advances
Dole makes cash advances and materials advances to third-party growers for various production needs, including labor, fertilization, irrigation, pruning and harvesting costs, and additionally incurs other supply chain costs on
behalf of third-party growers that are recorded as grower advance receivables. Some of these advances are secured by collateral owned by the growers.
Grower advances are categorized as either working capital advances or term advances. Working capital advances are made to the growers during a normal seasonal growing cycle to support operational working capital needs. These
advances are short-term in nature and are intended to be repaid with excess cash proceeds from the current crop harvest. Short-term grower loans and advances, whether secured or unsecured, are classified as grower advance receivables,
net, in the consolidated balance sheets.
Term advances are made to support longer-term grower investments. These advances are long-term in nature, are typically secured by long-term grower assets and usually involve a long-term supply agreement for the marketing of
fruit. These advances typically have structured repayment terms which are payable over the term of the advance or supply agreement with excess cash proceeds from the crop harvest, after payment of any outstanding working capital
advances. The term of supply agreements and term advances is generally one to ten years. The current portion of term advances is classified as grower advance receivables, net, and the non-current portion of term advances is classified as
other assets in the consolidated balance sheets.
Both working capital advances and term advances may bear interest. Accrued interest on these arrangements has not historically been significant to the financial statements.
The following table summarizes growers advances as of December 31, 2023 and December 31, 2022 based on whether the advances are secured or unsecured:
Of the $123.9 million and $117.4 million of net advances to growers and suppliers as of December 31, 2023 and December 31, 2022, respectively, $21.0 million and $12.9 million was considered past due.
Dole monitors the collectability of grower advances through periodic review of financial information received from growers. The allowance for credit losses for grower advances is monitored by management on a case-by-case
basis, considering historical credit loss information for the grower, the timing of the growing season and expected yields, the fair value of the collateral, macroeconomic indicators, weather conditions and other miscellaneous contributing
factors. Dole generally considers an advance to a grower to be past due when the advance is not fully recovered by the excess cash proceeds on the current year crop harvest or when the advance is not repaid by the excess cash proceeds
by the end of the supply term agreement.
F-31
Table of Contents
A rollforward of the allowance for expected credit losses related to grower advances for the years ended December 31, 2023 and December 31, 2022 was as follows:
Amount
(U.S. Dollars in thousands)
Balance as of December 31, 2021 $ (12,083)
Additional provisions in the period (6,955)
Recoveries of amounts previously reserved 2,147
Write-offs 1,247
Balance sheet reclassifications (3,500)
Foreign exchange impact 180
Balance as of December 31, 2022 (18,964)
Additional provisions in the period (12,222)
Recoveries of amounts previously reserved 1,401
Write-offs 5,398
Balance sheet reclassifications (1,161)
Foreign exchange impact 17
Balance as of December 31, 2023 $ (25,531)
Other Receivables
Other receivables, net, are recognized at net realizable value, which reflects the net amount expected to be collected. Current and non-current balances of other receivables are included in other receivables, net, and other assets,
respectively, in the consolidated balance sheets. Other receivables primarily comprise value-added taxes (“VAT”) receivables, other receivables from government and tax authorities and non-trade receivables from customers, suppliers
and other third parties. Based on the nature of these agreements, the timing of collection is dependent on many factors, including government legislation and the timing of settlement of the contract or arrangement.
Other receivables as of December 31, 2023 and December 31, 2022 were $138.4 million and $152.2 million, net of allowances for credit losses of $17.8 million and $21.5 million, respectively. Of these amounts outstanding, VAT
receivables represent $43.1 million and $39.8 million, net of allowances of $11.7 million and $14.7 million, respectively. VAT receivables are primarily related to purchases by production units and are refunded by certain taxing
authorities. As of December 31, 2023 and December 31, 2022, the allowance related to non-trade receivables from customers, suppliers and other third parties was not significant.
The following table presents income tax expense (benefit) by selected jurisdiction for each of the years ended December 31, 2023, December 31, 2022 and December 31, 2021:
Year Ended
December 31, 2023 December 31, 2022 December 31, 2021
Ireland
(235) (115) 354
U.S. (4,562) (8,916) 1,263
Foreign - excluding the U.S. and Ireland (7,803) (22,030) (22,532)
(12,600) (31,061) (20,915)
$ 43,591 $ (25,603) $ (10,980)
F-32
Table of Contents
Income (loss) from continuing operations before income taxes and equity earnings consisted of the following:
Year Ended
December 31, 2023 December 31, 2022 December 31, 2021
(U.S. Dollars in thousands)
Ireland $ (13,119) $ 536 $ (5,904)
U.S. 41,798 (20,188) (42,910)
Foreign - excluding the U.S. and Ireland 177,248 155,553 27,368
$ 205,927 $ 135,901 $ (21,446)
The differences between the reported income tax expense (benefit) and income tax expense (benefit) computed at the Irish statutory income tax rate of 12.5%, the trading income tax rate of the Company’s country of domicile, for
the years ended December 31, 2023, December 31, 2022 and December 31, 2021, are explained in the following reconciliation:
Year Ended
December 31, 2023 December 31, 2022 December 31, 2021
(U.S. Dollars in thousands)
Expense (benefit) computed at the Irish statutory rate of 12.5% $ 25,741 $ 16,987 $ (2,681)
Effects of:
Foreign income taxed at different rates
26,471 3,057 3,567
Foreign currency remeasurement effects (7,632) (2,564) 1,158
Change in valuation allowances
(15,366) 5,183 966
Expenses not deductible for income tax purposes 3,393 2,669 4,497
Income not taxable (1,962) (4,238) (188)
Interest expense not deductible for income tax purposes — 1,659 —
Changes in unrecognized tax benefits, net of indirect effects (2,349) (37,763) (18,264)
Recognition of deferred tax assets in respect of prior periods — (4,523) —
Changes in estimates made in respect of prior periods 15,307 (6,054) (63)
Other items (12) (16) 28
Income tax expense (benefit) $ 43,591 $ (25,603) $ (10,980)
Included in changes in estimates made in respect of prior periods are adjustments to U.S. state net operating losses and state credits of $18.0 million income tax expense, offset by an $18.0 million reduction in the valuation
allowance included within the change in valuation allowance row.
Deferred tax expense (benefit) recognized directly in other comprehensive income (loss) was as follows:
Year Ended
December 31, 2023 December 31, 2022 December 31, 2021
(U.S. Dollars in thousands)
Pension and postretirement benefits $ (3,549) $ (4,847) $ (555)
Fair value of derivatives (5,213) (10,598) (2,808)
Equity method investments 138 (138) (832)
Total deferred tax expense recognized in other comprehensive income (loss) $ (8,624) $ (15,583) $ (4,195)
F-33
Table of Contents
The following table provides details of the principal components of our deferred tax assets and liabilities as of December 31, 2023 and December 31, 2022:
As of December 31, 2023, Dole had approximately $1.0 billion of operating loss carryforwards expiring as follows:
As of December 31, 2023, U.S. state tax credit carryforwards of $0.7 million include $0.7 million which will expire between 2024 and 2028. In addition, Dole has $1.1 million of U.S. federal foreign tax credit carryforwards. If
unused, $0.7 million will expire in 2029, $0.0 million will expire in 2030, $0.3 million will expire in 2032, and $0.1 million will expire in 2033.
F-34
Table of Contents
The following table presents the movement in the valuation allowance for the years ended December 31, 2023, December 31, 2022 and December 31, 2021:
Amount
(U.S. Dollars in thousands)
Balance as of December 31, 2020 $ 16,395
Changes on acquisition/disposal 76,572
Increase recognized in the income statement 2,967
Decrease recognized in the income statement (3,418)
Translation adjustments (4,550)
Balance as of December 31, 2021 87,966
Changes on acquisition/disposal (723)
Increase recognized in the income statement 7,675
Decrease recognized in the income statement (2,492)
Changes in other comprehensive income (234)
Translation adjustments (1,247)
Balance as of December 31, 2022 90,945
Increase recognized in the income statement 8,036
Decrease recognized in the income statement (23,402)
Translation adjustments (117)
Balance as of December 31, 2023 $ 75,462
The valuation allowance decreased by $15.5 million in the year ended December 31, 2023 and by $3.0 million in the year ended December 31, 2022. The 2023 decrease includes a net decrease of $15.4 million recognized in the
consolidated statements of operations and $0.1 million decrease of exchange rate translation adjustments.
Dole is an Irish holding company that operates a significant number of foreign subsidiaries. As of December 31, 2023, the Company had not recognized a deferred tax liability on approximately $671.1 million of undistributed
earnings for certain foreign subsidiaries, because these earnings are intended to be indefinitely reinvested. If such earnings were distributed, some countries may impose additional taxes. The unrecognized deferred tax liability (the
amount payable if distributed) is approximately $48.5 million. Dole recognizes deferred tax assets on potential foreign tax credits expected to be generated by the repatriation of undistributed earnings only when the repatriation has
occurred or is apparent to occur in the foreseeable future.
A reconciliation of the beginning and ending amount of unrecognized tax benefits (excluding interest and penalties) is as follows:
Amount
(U.S. Dollars in thousands)
Balance as of December 31, 2020 $ 12,699
Changes on acquisition/disposal 52,341
Increases due to tax positions taken in the current year 1,004
Decreases due to lapse of statute of limitations (17,056)
Translation adjustments (907)
Balance as of December 31, 2021 48,081
Settlements (1,047)
Decreases due to lapse of statute of limitations (35,694)
Translation adjustments (607)
Balance as of December 31, 2022 10,733
Decreases due to lapse of statute of limitations (2,952)
Translation adjustments 212
Balance as of December 31, 2023 $ 7,993
F-35
Table of Contents
The total of unrecognized tax benefits was $8.0 million and $10.7 million as of December 31, 2023 and December 31, 2022, respectively. If recognized, it is estimated that Dole’s effective tax rate would be affected by additional
income tax benefit of $5.5 million and $7.3 million as of December 31, 2023 and December 31, 2022, respectively. At this time, Dole believes that it is reasonably possible that the total amount of unrecognized tax benefits could decrease
within the next twelve months by approximately $1.0 million related to the deduction of employee benefit matters, as a result of the lapse of the statute of limitations. The Company recognizes interest and penalties related to income taxes
within income tax expense in the income statement. Dole recognized a benefit of $0.4 million, $4.4 million and $4.9 million, respectively, for interest and penalties for the years ended December 31, 2023, December 31, 2022 and
December 31, 2021. A liability was recognized for accrued interest and penalties of $4.0 million and $5.2 million as of December 31, 2023 and December 31, 2022, respectively.
The tax years 2020 to 2023 remain subject to examination by taxing authorities in the United States. The tax years 2019 to 2023 remain subject to examination by taxing authorities in the U.K. The tax years 2019 to 2023 remain
subject to examination by taxing authorities in Ireland, Costa Rica, Ecuador, Germany and Guatemala. The tax years 2018 to 2023 remain subject to examination by taxing authorities in Sweden and Denmark.
Included in accrued liabilities in Dole’s consolidated balances sheets were the following items:
Miscellaneous other accrued liabilities primarily include liabilities related to accrued litigation reserves and legal costs and other accruals recorded based on timing. See Note 19 “Contingencies” for additional detail on the
Company’s legal activity.
Dole continuously reviews its assets in order to identify those assets that do not meet Dole’s future strategic direction or internal economic return criteria. As a result of this review, Dole has identified and is in the process of selling
certain assets which are classified as either held-for-sale or actively marketed property. The assets that have been identified are available for sale in their present condition and an active program is underway to sell the properties. For
property classified as held-for-sale, their sale is anticipated to occur during the ensuing year, while the timing of the sale of property specifically classified as actively marketed is uncertain.
F-36
Table of Contents
Assets held-for-sale
As of December 31, 2023 and December 31, 2022, assets held for sale were $1.8 million and $0.6 million, respectively, of property, plant and equipment. There were no liabilities held for sale as of December 31, 2023 and
December 31, 2022. During the year ended December 31, 2023, Dole approved and committed to sell two vessels and a number of properties in Latin America in the Fresh Fruit reportable segment, two properties in the U.S. in the
Diversified Fresh Produce – Americas & ROW reportable segment, one property in Ireland in the Diversified Fresh Produce – EMEA reportable segment and certain assets in the U.S. that are excluded from the Vegetables exit process.
As a result, assets with total net book values of $1.1 million, $3.2 million, $0.2 million and $6.9 million, respectively were transferred to assets held for sale. During the year ended December 31, 2022, Dole approved and committed to
sell two buildings in Europe in the Diversified Produce – EMEA reportable segment, one property in North Carolina in the Diversified Produce – Americas & ROW reportable segment and one property in Latin America in the Fresh Fruit
reportable segment. As a result, related assets with a total net book value of $2.8 million, $0.3 million and $0.2 million, respectively, were transferred to assets held for sale.
In the year ended December 31, 2023, Dole sold the two vessels and properties in Latin in the Fresh Fruit reportable segment, three properties in the U.S. in the Diversified Fresh Produce – Americas & ROW reportable segment
and the assets in the U.S. that are excluded from the Vegetables exit process, with a total net book value of $10.0 million, at a total gain of $20.8 million. In the year ended December 31, 2022, Dole sold two buildings in Europe in the
Diversified Fresh Produce – EMEA reportable segment, with a total net book value of $2.8 million, at a total gain of $7.8 million. In the year ended December 31, 2021, Dole sold two vessels and a property in Latin America in the Fresh
Fruit reportable segment, a ranch in North America and a Corporate-owned plane, with a total net book value of $21.7 million. There were no gains or losses on the sales.
A rollforward of assets held-for-sale for the years ended December 31, 2023 and December 31, 2022 in the consolidated balance sheets was as follows:
. Amount
(U.S. Dollars in thousands)
Balance as of December 31, 2021 $ 200
Additions 3,339
Reclassifications (120)
Sales (2,774)
Balance as of December 31, 2022 645
Additions 11,315
Sales (9,978)
Other (150)
Balance as of December 31, 2023 $ 1,832
As of December 31, 2023 and December 31, 2022, actively marketed property was $13.8 million and $31.0 million, respectively, and consisted entirely of land in Hawaii in the Fresh Fruit reportable segment. In the years ended
December 31, 2023 and December 31, 2022, Dole sold actively marketed Hawaii land, with net book values of $17.2 million and $20.7 million, respectively, at total gains of $31.7 million and $2.5 million, respectively. In the year ended
December 31, 2021, Dole sold actively marketed Hawaii land, with a net book value of $2.4 million, and there were no gains or losses on the sale.
F-37
Table of Contents
A rollforward of actively marketed property for the years ended December 31, 2023 and December 31, 2022 in the consolidated balance sheets was as follows:
. Amount
(U.S. Dollars in thousands)
Balance as of December 31, 2021 $ 50,364
Measurement period adjustments 1,303
Land sales (20,660)
Balance as of December 31, 2022 31,007
Land sales (17,226)
Balance as of December 31, 2023 $ 13,781
See Note 4 “Acquisitions and Divestitures” for additional detail on measurement period adjustments.
Depreciation is computed using the straight-line method over the estimated useful lives of the assets as follows:
Years
Land improvements 1 to 30
Buildings and leasehold improvements* 2 to 50
Machinery and equipment 1 to 25
Computer software 2 to 10
Vessels and containers 1 to 30
Machinery and equipment and vessel containers under finance leases Shorter of lease term or useful life
*Leasehold improvements are depreciated using the shorter of the useful life or life of the lease.
Depreciation expense on property, plant and equipment totaled $94.0 million, $98.7 million and $54.1 million for the years ended December 31, 2023, December 31, 2022 and December 31, 2021, respectively, excluding pineapple
bearer plants. During the years ended December 31, 2022 and December 31, 2021, Dole incurred an incremental depreciation charge of $41.1 million and $29.6 million, respectively, related to pineapple bearer plants that were brought to
fair value in conjunction with acquisitions, that was recognized in cost of sales in the consolidated statements of operations. See Note 4 “Acquisitions and Divestitures” for additional detail. Interest expense capitalized into property, plant
and equipment was not material for the years ended December 31, 2023, December 31, 2022 and December 31, 2021.
F-38
Table of Contents
The gross balance of goodwill was $525.2 million, with accumulated impairment losses of $11.9 million, as of December 31, 2023 and $508.9 million, with accumulated impairment losses of $11.5 million, as of December 31,
2022.
A rollforward of goodwill by reportable segment for the years ended December 31, 2023 and December 31, 2022, was as follows:
See Note 4 “Acquisitions and Divestitures” for additional detail on measurement period adjustments.
F-39
Table of Contents
A rollforward of intangible assets, excluding goodwill, for the years ended December 31, 2023 and December 31, 2022 was as follows:
Amount
(U.S. Dollars in thousands)
Balance as of December 31, 2021 $ 368,326
Additions 855
Amortization (10,893)
Foreign exchange impact and other (1,018)
Balance as of December 31, 2022 357,270
Additions 20
Amortization (10,198)
Foreign exchange impact and other 420
Balance as of December 31, 2023 $ 347,512
Amortization expense for definite-lived intangible assets was $10.2 million, $10.9 million and $11.4 million for the years ended December 31, 2023, December 31, 2022 and December 31, 2021, respectively.
As of December 31, 2023, the estimated amortization expense associated with Dole’s intangible assets for each of the next five fiscal years was as follows:
Amount
(U.S. Dollars in thousands)
2024 $ 9,977
2025 8,808
2026 6,683
2027 5,401
2028 4,175
Thereafter 2,120
Total $ 37,164
Dole evaluates goodwill and other indefinite-lived intangible assets for impairment annually during the fourth quarter, or more frequently if an event occurs or circumstances change that would indicate that an impairment may
exist. There was no impairment of goodwill or intangible assets recorded for the years ended December 31, 2023, December 31, 2022 and December 31, 2021.
As of the October 1, 2023 testing date, the fair values of the Fresh Fruit and Diversified Fresh Produce – Americas & ROW reporting units were in excess of their respective carrying amounts by 4% and 2%, respectively, and the
fair value of the DOLE brand was in excess of its carrying amount by 2%. Unfavorable changes to key assumptions, market conditions, and macroeconomic circumstances could result in future impairment.
F-40
Table of Contents
NOTE 14 — DEBT
Short-term borrowings, bank overdrafts and long-term debt consisted of the following:
Under the terms of the Credit Agreement entered into on March 26, 2021 (and subsequently amended on August 3, 2021), the Company has a senior secured revolving credit facility (the “Revolving Credit Facility”) in place which
provides for borrowings of up to $600.0 million and two term loan facilities (“Term Loan A” and “Term Loan B”) which provided for borrowings of $300.0 million and $540.0 million, respectively.
In June 2023, the Company amended the Credit Agreement to replace the U.S. dollar LIBOR benchmark rate with SOFR plus a spread. U.S. dollar borrowings under the Revolving Credit Facility refer to SOFR as the benchmark
rate plus an adjustment of 0.10%. U.S. dollar borrowings under the Term Loan A refer to SOFR as the benchmark rate plus a spread adjustment of 0.10%. For Term Loan B borrowings, the Company elected to adopt the LIBOR fallback
provisions and replaced LIBOR with SOFR as the benchmark rate plus a spread adjustment that varies from 0.11% to 0.72%, depending on the tenor of the borrowing.
Interest under the Revolving Credit Facility and Term Loan A is payable, at the option of Dole, either at (i) SOFR plus 0.10%, or the respective benchmark rate depending on the currency of the loan, plus 1.00% to 2.75%, with a
benchmark floor of 0.00% or (ii) a base rate plus 0.00% to 1.75%, in each case, to be determined based on credit ratings and the Company’s total net leverage ratio. Interest under Term Loan B is payable, at the option of Dole, either at (i)
SOFR plus the applicable credit spread adjustment, or the respective benchmark rate depending on the currency of the loan, plus 2.00% to 2.25%, with a benchmark floor of 0.00% or (ii) a base rate plus 1.00% to 1.25%, in each case, to
be determined based on credit ratings. As discussed in Note 17 “Derivative Financial Instruments”, the Company enters into interest rate swap arrangements to convert a portion of the Credit Agreement’s variable rate debt to fixed rate
debt.
Principal payments of $1.9 million under Term Loan A are due quarterly until maturity, with the remaining balance due on the maturity date of August 3, 2026. Principal payments of $1.4 million under Term Loan B are due
quarterly until maturity, with the remaining balance due on the maturity date of August 3, 2028. Under the terms of the Credit Agreement, the Company may be required to use a portion of the proceeds from the Vegetables exit process to
make a prepayment on Term Loan A and Term Loan B. The estimated minimum prepayment associated with the terms of the Fresh Express Agreement has been reclassified from long-term debt, net, to current maturities in the
consolidated balance sheets as of December 31, 2023. Because the Company now plans to exit the Fresh Vegetables division through an alternative process, the estimated minimum prepayment may change. The Revolving Credit Facility
has an expiration date of August 3, 2026.
F-41
Table of Contents
As of December 31, 2023, amounts outstanding under Term Loan A and Term Loan B were $811.0 million, in the aggregate, and borrowings under the Revolving Credit Facility were $89.8 million. After taking into account
approximately $5.9 million of related outstanding letters of credit, Dole had $504.3 million available for cash borrowings under the Revolving Credit Facility as of December 31, 2023. As of December 31, 2022, amounts outstanding
under Term Loan A and Term Loan B were $823.9 million, in the aggregate, and borrowings under the Revolving Credit Facility were $183.9 million. After taking into account approximately $15.0 million of related outstanding letters of
credit, Dole had $401.1 million available for cash borrowings under the Revolving Credit Facility as of December 31, 2022.
Borrowings under the Credit Agreement are secured by substantially all of the Company’s material U.S. assets of wholly owned subsidiaries, certain European assets and by the equity interests of substantially all Dole subsidiaries
located in the U.S. and certain subsidiaries located in Europe.
On December 11, 2015, Dole entered into three secured loan agreements (“first vessel facility”) of up to $111.0 million, in the aggregate, to finance a portion of the acquisition costs of three new vessels. The first vessel facility
consists of three tranches, each tied to a specific vessel, which allowed the Company to borrow up to 70%, or $37.0 million, of the contract cost of each vessel, collateralized by the completed vessel. Principal and interest payments are
due quarterly in arrears for 48 consecutive installments. The first vessel facility bears interest at a rate per annum equal to LIBOR plus 2.00% to 3.25% and will mature on May 18, 2028. As of December 31, 2023 and December 31, 2022,
Dole’s borrowings under the first vessel facility were $39.3 million and $48.6 million, respectively.
On October 30, 2020, Dole entered into two additional secured loan agreements (“second vessel facility”) of $49.1 million, in the aggregate, to finance a portion of the acquisition costs of two new vessels, which were delivered in
2021. Each agreement was tied to a specific vessel which allowed Dole to borrow 60%, or $24.5 million, of the contract cost of each vessel, collateralized by the completed vessel. On January 14, 2021 and April 7, 2021, the first and
second loans were funded for $24.5 million each and mature on January 14, 2030 and April 7, 2030, respectively. The second vessel facility bears interest at a rate per annum equal to LIBOR plus 3.25% and principal and interest
payments are due semi-annually in arrears for 18 consecutive installments. As of December 31, 2023 and December 31, 2022, Dole’s borrowings under the second vessel facility were $35.5 million and $40.9 million, respectively.
Dole’s other financing arrangements consist of a number of loan agreements entered into to finance other capital expenditures and working capital requirements.
As of December 31, 2023 and December 31, 2022, the Company had $8.6 million and $11.5 million, respectively, in other financing arrangements outstanding related to a secured long-term asset financing arrangement for farms in
Chile. The terms of the financing arrangement include a 10-year loan of $23.1 million due in June 2026 that bears interest at a rate per annum equal to LIBOR plus 2.39%. Principal and interest payments are due semi-annually in arrears.
The long-term financing arrangement is collateralized by the purchased farms and their related assets.
As of December 31, 2023 and December 31, 2022, the Company had $9.3 million and $11.3 million, respectively, in other financing arrangements outstanding related to two secured long-term asset financing arrangements for
pineapple farms in Costa Rica. Both agreements provide for a 10-year loan and are collateralized by the purchased farms and their related assets. The first agreement, maturing in July 2026, bears interest at a rate per annum equal to
LIBOR plus 5.00%, adjustable annually, with a floor rate of 5.50% per annum. Interest and principal payments are due monthly in arrears. The second agreement, maturing in July 2031, includes principal payments of $10.1 million that
was paid in July of 2022 and $3.1 million due in July of 2031, with a single payment of $0.4 million for interest which was paid in July of 2022.
As of December 31, 2023 and December 31, 2022, the Company had $17.0 million and $18.7 million, respectively, of remaining other financing arrangements, none of which are individually significant.
F-42
Table of Contents
In addition to amounts available under the Revolving Credit Facility, Dole’s subsidiaries had other lines of credit and bank overdraft facilities at various local banks of approximately $269.6 million as of December 31, 2023 and
$252.3 million as of December 31, 2022. These lines are primarily used to fund seasonal working capital requirements, short-term borrowings and bank guarantees. They consist of both secured and unsecured facilities, committed and
uncommitted, and some are guaranteed by the Company and certain subsidiaries. The majority of Dole’s other lines of credit extend indefinitely but may be cancelled at any time by Dole or the banks, and if cancelled, any outstanding
amounts would be due on demand. As of December 31, 2023 and December 31, 2022, total bank overdrafts were $11.5 million and $8.6 million, respectively, and other amounts outstanding under these lines were $38.8 million and $74.0
million, respectively. As of December 31, 2023 and December 31, 2022, after taking into account outstanding letters of credit, Dole had $217.2 million and $167.6 million, respectively, available for use under these lines.
As of December 31, 2023 and December 31, 2022, Dole’s finance lease obligations of $33.2 million and $29.9 million, respectively, primarily relate to machinery and equipment and vessel containers, which continue through 2031.
Provisions under the credit facilities include limitations on, among other things, indebtedness, investments, liens, loans to subsidiaries, employees and third parties, the issuance of guarantees and the payment of dividends.
The credit facilities require Dole to maintain compliance with a maximum leverage ratio, which was initially set at 4.50 to 1.00 beginning December 31, 2021, with step-downs to (i) 4.25 to 1.00 for fiscal year 2022 and (ii) 4.00 to
1.00 for each fiscal year thereafter. As of December 31, 2023, Dole was in compliance with all applicable covenants.
A breach of a covenant or other provision in any debt instrument governing Dole’s current or future indebtedness could result in a default under that instrument and, due to customary cross-default and cross-acceleration provisions,
could result in a default under Dole’s other debt instruments. Upon the occurrence of an event of default under the credit facilities or other debt instruments, the lenders or holders of such debt could elect to declare all amounts
outstanding to be immediately due and payable and terminate all commitments to extend further credit. If Dole were unable to repay those amounts, the lenders could proceed against the collateral granted to them, if any, to secure the
indebtedness. If the lenders under Dole’s indebtedness were to accelerate the payment of the indebtedness, Dole cannot give assurance that its assets would be sufficiently liquid to repay in full its outstanding indebtedness on an
accelerated basis.
Debt discounts and issuance costs are amortized over the term of the debt agreement using the effective interest method. Debt discounts and issuance costs are presented as a direct reduction of debt in the consolidated balance
sheets, except for those issuance costs related to revolving credit facilities and line-of-credit arrangements which are recorded as a prepaid asset in the consolidated balance sheets.
The amortization expense related to Dole’s deferred debt discounts and issuance costs is recorded as interest expense in the consolidated statements of operations. For the years ended December 31, 2023, December 31, 2022 and
December 31, 2021, amortization expense related to deferred debt discounts and issuance costs was $5.8 million, $6.0 million and $2.6 million, respectively.
F-43
Table of Contents
Stated maturities with respect to current and long-term debt, excluding finance lease obligations, as of December 31, 2023 were as follows:
Amount
(U.S. Dollars in thousands)
2024 $ 223,904
2025 35,877
2026 349,720
2027 23,167
2028 408,561
Thereafter 19,423
Total $ 1,060,652
Dole sponsors a number of defined benefit pension plans covering certain employees worldwide. Benefits under these plans are generally based on each employee’s eligible compensation and years of service, except for certain
plans covering union employees, which are based on negotiated benefits. In addition to pension plans, Dole also has OPRB plans that provide certain health care and life insurance benefits for eligible retired employees.
The Company sponsors six funded defined benefit pension plans including a U.S. qualified plan and five plans outside of the U.S., two of which are based in Ireland, two are based in the U.K., and one is based in Canada. The
Company had previously sponsored a Netherlands scheme which was settled in the year ended December 31, 2022. The Company also sponsors unfunded international pension plans (primarily in Latin America) and OPRB plans.
The Company continues a strategy to de-risk its exposure to defined benefit schemes. Substantially all U.S. pension benefits were frozen on December 31, 2001. The plans in Ireland are closed to new entrants, and salaries for
defined benefit purposes have been capped, with any salary increases above the cap eligible on a defined contribution basis since 2009. Starting in 2017, Enhanced Transfer Value (“ETV”) programs and buy-in contracts have been
initiated for certain members of the Irish plans. Under ETV programs, accumulated accrued benefits for affected members were transferred from the Irish Plans which eliminated future accrual of benefits and entitled the members to
receive a transfer value above the statutory minimum amount. Bulk annuity policies (buy-in contracts) were purchased from insurers that provide payments back to the pension scheme to cover the benefits for the affected members.
Under the buy-in contracts, the responsibility to pay the pension obligations still rests with the plan and the obligation is still recorded by the Company. Both of the U.K. schemes are closed to new entrants and to new accruals.
Dole’s SERP is a non-qualified benefit and executive compensation plan, and Dole’s ESP plan is a non-qualified deferred compensation plan. Both are funded through investments in Rabbi Trusts. Following a change of control
event, Dole is obligated, under the provisions of the respective trust agreements, to contribute an amount sufficient to meet the ESP obligation for benefits earned through the change in control year and the ongoing value of the projected
benefit obligation of the SERP. The assets held in the Rabbi Trusts are subject to the claims of Dole’s general unsecured creditors. As of December 31, 2023, $5.9 million of the assets was classified as short-term and included in short-
term investments in the consolidated balance sheets, and $16.0 million was classified as long-term and included in long-term investments in the consolidated balance sheets. As of December 31, 2022, $5.4 million was classified as short-
term and $16.5 million was classified as long-term.
F-44
Table of Contents
The funded status of Dole’s defined benefit pension plans was as follows:
Funded status
$ (26,476) $ (27,629) $ (82,499) $ (80,222) $ (13,251) $ (13,144)
Other assets
$ — $ — $ 16,033 $ 20,938 $ — $ —
Pension and postretirement benefits (2,189) (2,229) (12,244) (13,066) (2,137) (1,992)
Pension and postretirement benefits, less current portion (24,287) (25,400) (86,288) (88,094) (11,114) (11,152)
$ (26,476) $ (27,629) $ (82,499) $ (80,222) $ (13,251) $ (13,144)
Amounts recognized in accumulated other comprehensive loss (income), before tax, were as follows:
Total $ 24,638 $ 18,341 $ 11,011 $ 14,950 $ 8,895 $ 42,334 $ 924 $ (1,531) $ 166
The aggregate projected benefit obligation, accumulated benefit obligation and fair value of plan assets of plans with accumulated benefit obligations in excess of plan assets were as follows:
F-45
Table of Contents
The aggregate projected benefit obligation, accumulated benefit obligation and fair value of plan assets of plans with projected benefit obligations in excess of plan assets were as follows:
December 31, 2023 December 31, 2022
(U.S. Dollars in thousands)
Components of Net Periodic Benefit Cost (Income) and Other Changes Recognized in Other Comprehensive Income (Loss)
The components of net periodic benefit cost (income) and other changes recognized in other comprehensive income (loss) for Dole’s U.S. and international pension plans and OPRB plans were as follows:
The Company classifies the non-service components of net periodic pension benefit cost within other income, net, in the consolidated statements of operations. Non-service components include interest costs, expected return on
plan assets, amortization of net loss (gain) and prior service benefit, curtailment or settlement costs and other items.
F-46
Table of Contents
Assumptions
Discount rate
5.10 % 5.31% 5.06 % 5.26 % 5.88 % 5.79%
Rate of compensation increase
3.00 % 3.00% 3.17 % 3.18 % — —
Rate of increase in pensions — — 2.17 % 2.07 % — —
Weighted average assumptions used to determine net periodic benefit cost were as follows:
Discount rate
5.31 % 2.62% 2.39% 5.26 % 2.61 % 2.29 % 5.79 % 3.18% 2.72%
Rate of compensation increase 3.00 % 3.00% 3.00% 3.03 % 1.98 % 2.84 % — — —
Rate of increase in pensions — — — 2.07 % 1.90 % 1.68 % — — —
Rate of return on plan assets
6.80 % 5.10% 5.00% 4.36 % 3.36 % 2.85 % — 3.36% —
International plan discount rates and assumed rates of increase in future compensation differ from the assumptions used for U.S. plans due to differences in the local economic conditions in the countries in which the international
plans are based. No rate of compensation increase is shown for U.S. plans, because benefits under the U.S. plans are frozen, except for a group of employees whose benefits are negotiated under collective bargaining agreements. The
assumption for the rate of compensation increase for these employees reflects the rate negotiated in those bargaining agreements.
The accumulated pension benefit obligation for Dole’s OPRB plan was determined using the following assumed annual rate of increase in the per capita cost of covered health care benefits:
2023 2022
Plan Assets
The following is the target asset mix for Dole’s pension plans, which management believes provides the optimal trade-off of diversification and long-term asset growth:
Target
Allocation
Fixed income securities 42%
Equity securities 18%
Other 40%
Total 100%
F-47
Table of Contents
Dole’s pension plan weighted average asset allocation by asset category was as follows:1
Year Ended
December 31, 2023 December 31, 2022
Fixed income securities 42% 52%
Equity securities 18% 23%
Other 40% 25%
Total 100% 100%
1
Certain investments are in funds measured at net asset value as presented in the fair value table below.
The plans’ asset allocation includes a mix of fixed income and other investments designed to reduce volatility and equity investments designed to maintain funding ratios and long-term financial health of the plan. The equity
investments are diversified across U.S. and international stocks as well as growth, value and small and large capitalization.
Dole employs a total return investment approach whereby a mix of fixed income, equity and other investments is used to maximize the long-term return of plan assets with a prudent level of risk. The objectives of this strategy are
to achieve full funding of the accumulated benefit obligation and to achieve investment experience over time that will minimize pension expense volatility and minimize Dole’s contributions required to maintain full funding status. Risk
tolerance is established through careful consideration of plan liabilities, plan funded status and corporate financial condition. Investment risk is measured and monitored on an ongoing basis through annual liability measurements, periodic
asset/liability studies and quarterly investment portfolio reviews.
Dole determines the expected return on pension plan assets based on an expectation of average annual returns over an extended period of years. Dole also considers the weighted-average historical rate of returns on investments
with similar characteristics to those in which Dole’s pension assets are invested.
Dole estimates the fair value of its retirement plan assets based on current quoted market prices. In instances where quoted market prices are not readily available, the fair value of the investments is estimated by the trustee. In
obtaining such data from the trustee, Dole has evaluated the methodologies used to develop the estimate of fair value in order to assess whether such valuations are representative of fair value, including net asset value. Fair values for
Level 1 investments are determined based on quoted prices (unadjusted) in active markets that are accessible at the measurement date for identical assets or liabilities. For Level 2 investments, the fair values are determined using
observable prices that are based on inputs not quoted on active markets but corroborated by market data. There were no identified Level 3 investments as of December 31, 2023 and December 31, 2022.
The carrying value and estimated fair values of Dole’s retirement plan assets are summarized below:
F-48
Table of Contents
The table below sets forth a summary of the transfers and purchases of the plans’ Level 3 assets for the year ended December 31, 2022:
During the year ended December 31, 2023, Dole contributed $0.5 million to its qualified U.S. pension plan. These contributions were made to comply with minimum funding requirements under the Internal Revenue Code without
regard to interest rate stabilization. Future contributions to the U.S. pension plan in excess of the minimum funding requirement are voluntary and may change depending on Dole’s operating performance or at management’s discretion.
Contributions and benefits paid directly by Dole related to its other U.S. and international pension and OPRB plans totaled $19.4 million during the year ended December 31, 2023.
Dole expects to make $5.5 million of contributions and $16.8 million of direct benefit payments related to its pension and OPRB plans in fiscal year 2024.
U.S. Pension
Plans International Pension Plans OPRB Plans
(U.S. Dollars in thousands)
2024 $ 19,677 $ 18,817 $ 2,137
2025 18,733 13,517 2,017
2026 17,879 14,971 1,858
2027 17,065 15,421 1,499
2028 16,250 15,587 1,340
Thereafter 68,254 80,480 5,110
Total $ 157,858 $ 158,793 $ 13,961
F-49
Table of Contents
Dole offers defined contribution plans to eligible employees. Such employees may defer a percentage of their annual compensation in accordance with plan guidelines. Some of these plans provide for a company match that is
subject to a maximum contribution as defined by the plan. Dole’s contributions to its defined contribution plans totaled $23.4 million, $21.4 million and $15.7 million for the years ended December 31, 2023, December 31, 2022 and
December 31, 2021, respectively.
Dole is also party to various industry-wide collective bargaining agreements that provide pension benefits. Total contributions to multi-employer defined benefit plans for eligible participants were not material for the years ended
December 31, 2023, December 31, 2022, and December 31, 2021.
Dole has numerous collective bargaining agreements with various unions covering approximately 30.3% of Dole’s workforce. Of these unionized employees, 28.1% are covered under a collective bargaining agreement that will
expire within one year, and the remaining 71.9% are covered under collective bargaining agreements expiring beyond the upcoming year. These agreements are subject to periodic negotiation and renewal. Failure to renew any of these
collective bargaining agreements may result in a strike or work stoppage; however, management does not expect that the outcome of these negotiations and renewals will have a material adverse impact on Dole’s financial condition or
results of operations.
NOTE 16 — LEASES
Lease Position
The following tables present the lease-related assets and liabilities recorded in the consolidated balance sheets:
F-50
Table of Contents
The weighted-average remaining lease term and discount rate for the Company’s lease profile as of December 31, 2023 and December 31, 2022 was as follows:
Lease Costs
The following table presents certain information related to lease costs for finance and operating leases for the years ended December 31, 2023, December 31, 2022 and December 31, 2021:
Year Ended
December 31, 2023 December 31, 2022 December 31, 2021
The following represents the disaggregation of certain cash flow supplementary data by finance and operating lease classifications:
Year Ended
December 31, 2023 December 31, 2022 December 31, 2021
Cash paid for amounts included in the measurement of lease liabilities: (U.S. Dollars in thousands)
Operating cash flows from finance leases $ 1,188 $ 1,223 $ 968
Operating cash flows from operating leases 63,844 66,684 33,322
Financing cash flows from finance leases 7,393 8,183 6,332
Year Ended
December 31, 2023 December 31, 2022 December 31, 2021
(U.S. Dollars in thousands)
Right-of-use assets obtained in exchange for finance lease liabilities $ 9,045 $ 776 $ 5,452
Right-of-use assets obtained in exchange for operating lease liabilities 86,907 91,063 21,711
F-51
Table of Contents
The following table reconciles the undiscounted cash flows for each of the first five years and total remaining years to the finance and operating lease liabilities recorded on the balance sheet as of December 31, 2023:
In the ordinary course of business, Dole enters into a number of lease agreements with related parties. During the periods presented, Dole, as a lessee, had the following lease liability balances with related parties:
Lease-related Liabilities with Related Parties as of December 31, 2023 Lease-related Liabilities with Related Parties as of December 31, 2022
Current maturities Operating leases, Current maturities Operating leases,
of operating leases less current maturities of operating leases less current maturities
(U.S. Dollars in thousands)
Operating leases $ 4,179 $ 18,136 $ 3,787 $ 22,194
Finance leases 895 — 1,053 895
$ 5,074 $ 18,136 $ 4,840 $ 23,089
See Note 20 “Related Party Transactions” for revenues and expenses related to leases with related parties.
Lessor Accounting
The company leases various types of owned properties to external parties, mainly through operating lease agreements. Leasing assets to external parties is not significant to Dole’s operations. Rental income recognized on
agreements where Dole acted as the lessor was as follows:
Year Ended
December 31, 2023 December 31, 2022 December 31, 2021
Dole is exposed to foreign currency exchange rate fluctuations, bunker fuel price fluctuations and interest rate changes in the normal course of its business. As part of its risk management strategy, Dole uses derivative instruments
to hedge some of these exposures. Dole’s objective is to offset gains and losses resulting from these exposures with losses and gains from the derivative contracts used to hedge them, thereby reducing the volatility of earnings. Dole does
not hold or issue derivative financial instruments for trading or speculative purposes. The types of derivative instruments utilized by Dole are described below:
Foreign currency hedges: Dole enters into foreign currency exchange forward and option contracts to hedge exposure to changes in certain foreign currency exchange rates. Dole enters into fair value hedges to hedge foreign
currency exposure of non-functional currency assets and liabilities and cash flow hedges to hedge foreign currency exposure of forecasted revenue, cost of sales and operating expenses.
F-52
Table of Contents
Interest rate swaps: Dole enters into interest rate swaps to mitigate a significant portion of the interest rate risk associated with its variable-rate debt.
In June 2023, Dole amended $700.0 million notional value of its interest rate swaps to change the benchmark interest rate from U.S. dollar LIBOR to SOFR. In addition, the floor for each of the swaps that have been designated to
hedge Term Loan A borrowings was changed to (0.10%), and the floor for each of the swaps that have been designated to hedge Term Loan B borrowings was changed to (0.11%). The fixed rate of each swap was adjusted to account for
the market value difference between the LIBOR and SOFR reference rates.
The interest rate swaps pay a fixed rate of interest at rates between 0.42% and 2.50%, with the receiving rates variable based on SOFR, which were between 5.35% and 5.38% as of December 31, 2023. All interest rate swap
arrangements are classified within the consolidated balance sheets based on ultimate maturity date of the arrangement.
Bunker fuel contracts: Dole incurs significant fuel costs from shipping products from sourcing locations to end customer markets. As a result, Dole is exposed to commodity and fuel cost risks and enters into bunker fuel contracts
to hedge the risk of unfavorable fuel prices.
The Company performs an analysis of its hedging portfolio at inception and on a quarterly basis. The Company uses the following criteria in evaluating derivative instruments for hedge accounting:
Dole designates the interest rate swaps and certain foreign currency cash flow hedges for hedge accounting and records the changes in fair value of these instruments in accumulated other comprehensive loss. The changes in fair
value of foreign currency fair value hedges, non-designated cash flow hedges and bunker fuel hedges are recorded in earnings.
Dole had the following derivative instruments outstanding as of December 31, 2023:
F-53
Table of Contents
Quantitative Disclosures
Derivatives are presented gross in the consolidated balance sheets. The following table presents the balance sheet location and fair value of the derivative instruments by type:
Refer to Note 18 “Fair Value Measurements” for the presentation of fair value instruments within the consolidated balance sheets, which includes derivative financial instruments.
The following tables represent Dole’s realized and unrealized derivative gains (losses) and respective location in the financial statements for all derivative instruments for the years ended December 31, 2023, December 31, 2022
and December 31, 2021:
F-54
Table of Contents
As of December 31, 2023, the Company expects approximately $18.3 million of deferred net gains from cash flow hedges to be reclassified from accumulated other comprehensive loss into earnings over the next 12 months. Of the
$18.3 million of net deferred gains, $22.7 million relates to deferred gains on interest rate swap contracts and is expected to offset future interest expense on Term Loan A and Term Loan B, and $4.4 million relates to net deferred losses
on cash flow hedges and is expected to offset future operational losses on foreign currency exchange rates. Refer to Note 21 “Stockholders’ Equity” for details on reclassifications out of accumulated other comprehensive loss for the years
ended December 31, 2023, December 31, 2022 and December 31, 2021.
The inputs used to measure fair value are based on a hierarchy that prioritizes observable and unobservable inputs used in valuation techniques. These levels, in order of highest to lowest priority, are described below:
Level 1: Quoted prices (unadjusted) in active markets that are accessible at the measurement date for identical assets or liabilities.
Level 2: Observable prices that are based on inputs not quoted on active markets but corroborated by market data.
F-55
Table of Contents
Fair Value of Assets and Liabilities Measured at Fair Value on a Recurring Basis
The following tables present the fair values of the Company’s assets and liabilities remeasured at fair value as of December 31, 2023 and December 31, 2022.
F-56
Table of Contents
The table below sets forth a summary of changes in the fair value of the Level 3 investments, excluding contingent consideration and pension assets, for the years ended December 31, 2023 and December 31, 2022:
The assets and liabilities that are required to be recorded at fair value on a recurring basis are derivative instruments, contingent consideration and Rabbi Trust investments. The fair values of the Company’s derivative instruments
are determined using Level 2 inputs, which are defined as “observable prices that are based on inputs not quoted on active markets but corroborated by market data.” The fair values of the foreign currency forward contracts, the interest
rate swaps and bunker fuel hedges were estimated using internal discounted cash flow calculations based upon forward foreign currency exchange rates, bunker fuel futures, interest rate yield curves or quotes obtained from brokers for
contracts with similar terms, less any credit valuation adjustments based on Dole’s own credit risk and any counterparties' credit risk.
Dole sponsors a non-qualified deferred compensation plan and a frozen non-qualified supplemental defined benefit plan for executives. The plans are funded through investments in Rabbi Trusts. Securities are recorded at fair value
with realized and unrealized holding gains or losses included in earnings. As of December 31, 2023, securities totaled $21.9 million, of which $5.9 million was classified as short-term and included in short-term investments in the
consolidated balance sheets, and $16.0 million was classified as long-term and included in long-term investments in the consolidated balance sheets. As of December 31, 2022, securities totaled $21.9 million of which $5.4 million was
classified as short-term and $16.5 million was classified as long-term. Dole estimates the fair value of its Rabbi Trust investments using prices provided by its custodian, which are based on various third-party pricing services or valuation
models developed by the underlying fund managers. The Rabbi Trust investments are held by the custodian in various Master Trust Units (“MTUs”), where the fair value is derived from the individual investment components. Each
investment within the MTU is individually valued, after considering gains, losses, contributions and distributions, and the collective value of the MTU represents the total fair value. Dole has evaluated the methodologies used by the
custodian to develop the estimate of fair value and assessed whether such valuations are representative of fair value, including net asset value. Dole has determined the valuations to be Level 3 inputs, because they are based upon
significant unobservable inputs.
F-57
Table of Contents
The table below sets forth a summary of changes in the fair value of the Level 3 contingent consideration for the years ended December 31, 2023 and December 31, 2022:
Fair Value Measurements
Using Significant
Unobservable Inputs (Level 3)
(U.S. Dollars in thousands)
Balance as of December 31, 2021 $ (7,260)
Additions (2,907)
Payments 2,909
Remeasurement gain 14
Foreign exchange impact 431
Balance as of December 31, 2022 (6,813)
Additions (3,854)
Payments 1,662
Remeasurement gain 91
Foreign exchange impact (201)
Balance as of December 31, 2023 $ (9,115)
The carrying value of contingent consideration in the consolidated balance sheets approximates fair value based on the present value of the expected payments, discounted using a risk-adjusted rate. The expected payments are
determined by forecasting the acquiree's earnings over the applicable period. Dole has determined the valuations are Level 3 inputs, because they are based upon significant unobservable inputs.
In estimating the Company’s fair value disclosures for financial instruments, Dole used the following methods and assumptions:
Cash and cash equivalents: These items have carrying values reported in the consolidated balance sheets that approximate fair value due to their liquid nature, and they are classified as Level 1.
Short-term trade and grower receivables: These items have carrying values reported in the consolidated balance sheets that are net of allowances, and they are classified as Level 2.
Trade payables: These items have carrying values reported in the consolidated balance sheets that approximate fair value, and they are classified as Level 2.
Notes receivable and notes payable: These items have carrying values reported in the consolidated balance sheets that approximate fair value, and they are classified as Level 2.
Long-term grower receivables: These items have carrying values reported in the consolidated balance sheets that are net of allowances, and they are classified as Level 2.
Finance and operating leases: The carrying value of finance lease obligations reported in the consolidated balance sheets approximates fair value based on current interest rates, which contain an element of default risk. The fair
value of finance lease obligations is estimated using Level 2 inputs based on quoted prices for those or similar instruments. For operating leases, Dole uses the rate implicit in the lease to discount leases payments to present value, when
available. However, most leases do not provide a readily determinable implicit rate. Therefore, the Company’s incremental borrowing rate is used to discount the lease payments based on information available at lease commencement.
Interest-bearing loans and borrowings: For floating rate interest-bearing loans and borrowings with a contractual repricing date of less than one year, the nominal amount is deemed to reflect fair value. For loans with repricing
dates of greater than one year, fair value is calculated based on the present value of the expected future principal and interest cash flows, discounted at interest rates effective at the reporting date and adjusted for movements in credit
spreads. Based on these inputs, these instruments are classified as Level 2.
F-58
Table of Contents
Dole estimates the fair value of its Term Loan A and Term Loan B based on the bid side of current quoted market prices.
The carrying value, net of debt issuance costs, and gross estimated fair value of these term loans based on Level 2 inputs in the fair value hierarchy are summarized below:
Credit Risk
The counterparties to the foreign currency exchange contracts consist of a number of major international financial institutions. Dole has established counterparty guidelines and regularly monitors its positions and the financial
strength of these institutions. While counterparties to hedging contracts expose Dole to credit-related losses in the event of a counterparty’s non-performance, the risk would be limited to the unrealized gains on such affected contracts.
Dole does not anticipate any such losses.
NOTE 19 — CONTINGENCIES
Dole provides guarantees for obligations of subsidiaries to third parties directly and indirectly through letters of credit from its revolving credit facilities, other major banking institutions and surety bonds issued by insurance
companies. These letters of credit, bank guarantees and surety bonds are required by certain regulatory authorities, suppliers and other operating agreements and generally have contract terms of one to twenty years, often with an option
to renew. As of December 31, 2023 and December 31, 2022, total letters of credit, bank guarantees and surety bonds outstanding under these arrangements were $48.6 million and $61.4 million, respectively, which represents the
maximum potential future payments that Dole could be required to make.
Additionally, the Company guarantees certain bank borrowings and other obligations of certain equity method investees. As of December 31, 2023 and December 31, 2022, total guarantees under these arrangements were $6.4
million and $9.2 million, respectively, which represents the maximum potential future payments that Dole could be required to make.
Each of the following Irish registered subsidiaries of the Company may avail of the exemption from filing its statutory financial statements for the year ended December 31, 2023 as permitted by Section 357 of the Companies Act
2014. If any of these Irish registered subsidiaries of the Company elects to avail of this exemption, there will be in force an irrevocable guarantee from the Company in respect of all commitments entered into by such wholly-owned
subsidiary, including amounts shown as liabilities (within the meaning of Section 357 (1) (b) of the Companies Act 2014) in such wholly-owned subsidiary’s statutory financial statements for the year ended December 31, 2023:
F-59
Table of Contents
Hawaii Spillway
In February of 2020, the State of Hawaii and Department of Land and Natural Resources provided notice to Dole of a deficiency in the spillway and embankment stability of a Company-owned reservoir that requires mediation by
2025. Dole contracted a third party to perform an improvement study which resulted in an estimate of costs to modify the spillway of approximately $20.0 million. On July 5, 2023, Hawaii Senate Bill 833 was signed into law by the
Governor of Hawaii, pursuant to which the Office of the Governor will negotiate the acquisition of Dole’s interests in the reservoir and associated irrigation system. The bill also appropriates funds for the State to repair and maintain the
irrigation system and the associated spillway. The Company does not deem a resulting loss from the contingency associated with the costs to modify the spillway to be probable and, thus, has not recognized a liability in the consolidated
balance sheets.
Legal Contingencies
Dole is involved from time to time in claims and legal actions incidental to its operations, both as plaintiff and defendant. Legal fees are expensed as incurred or expected to be incurred when the resulting loss from legal matters
related to underlying events that have already occurred is probable and estimable. Dole has established what management currently believes to be adequate accruals for pending legal matters. These accruals 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 legal counsel, the claims or actions to which Dole is a party are not expected to have a material adverse effect, individually or in the aggregate, on Dole’s results of
operations, financial condition or cash flows.
DBCP Cases: Dole Food Company, Inc. and certain of its subsidiaries are involved in lawsuits pending in the U.S. and in foreign countries alleging injury because of exposure to the agricultural chemical DBCP (1,2- dibromo-3-
chloropropane). Currently, there are approximately 180 lawsuits in various stages of proceedings alleging injury or seeking enforcement of Nicaraguan judgments, most of which are pending in Nicaragua and are inactive. In addition,
there are multiple labor cases pending in Costa Rica under that country’s national insurance program.
Settlements have been reached that, when fully implemented, will significantly reduce DBCP litigation in Nicaragua and the Philippines. Currently, claimed damages in DBCP cases worldwide total approximately $17.8 billion,
with lawsuits in Nicaragua representing almost all of this amount. 24 of the cases in Nicaragua have resulted in judgments, although many of these are being eliminated as part of the current settlements. The Company believes that none
of the Nicaraguan judgments that remain will be enforceable against any Dole entity in the U.S. or in any other country.
As to all the DBCP matters, Dole has denied liability and asserted substantial defenses. The Company believes there is no reliable scientific basis for alleged injuries from the agricultural field application of DBCP. Although no
assurance can be given concerning the outcome of the DBCP cases, in the opinion of management, after consultation with legal counsel and based on experience defending and resolving DBCP claims, neither the pending lawsuits and
claims nor their resolution are expected to have a material adverse effect on Dole’s financial position or results of operations, because the probable loss is not material.
F-60
Table of Contents
Former Shell Site: Beginning in 2009, Shell Oil Company and Dole Food Company, Inc. were sued in several cases filed in Los Angeles Superior Court by the City of Carson and persons claiming to be current or former residents
in the area of a housing development built in the 1960’s by a predecessor of what is now a Dole subsidiary, Barclay Hollander Corporation (“BHC”), on land that had been owned and used by Shell as a crude oil storage facility for 40
years prior to the housing development. The homeowner and City of Carson complaints have been settled and the litigation has been dismissed. On May 6, 2013, Shell filed a complaint against Dole Food Company, Inc. (which was later
voluntarily dismissed), BHC and Lomita Development Company (“Lomita”), seeking indemnity for the costs associated with the lawsuits discussed above (approximately $90.0 million plus attorney fees) and for the cleanup discussed
below (approximately $310.0 million). Shell’s indemnification claims were based on an early entry side agreement between Shell and an entity related to BHC and on claims based in equity. The trial court dismissed Shell’s contract-
based claims and eliminated Shell’s demands for indemnification related to the homeowner and City of Carson cases. Shell’s equitable claims related to the cleanup costs were tried and, on November 9, 2022, the jury delivered a verdict
deciding that Shell properly incurred and will incur a total of $266.6 million in cleanup costs, and that BHC should bear 50.0% of those costs, or $133.3 million. BHC has filed an appeal. In June 2023, the trial court granted Shell’s
motion to add Dole Food Company, Inc. to the BHC judgment as an alter ego of BHC and ordered Shell to reimburse BHC approximately $26.7 million in attorney’s fees, which serves as an offset to the BHC judgment amount. Dole
Food Company, Inc., has appealed the alter ego ruling and secured a bond sufficient to stay enforcement of the judgement. Shell has appealed the award of the attorney’s fees.
The California Regional Water Quality Control Board (“Water Board”) is supervising the cleanup on the former Shell site. On March 11, 2011, the Water Board issued a Cleanup and Abatement Order (“CAO”) naming Shell as the
Discharger and a Responsible Party and ordering Shell to assess, monitor and cleanup and abate the effects of contaminants discharged to soil and groundwater at the site. On April 30, 2015, the CAO was amended to also name BHC as a
discharger. BHC appealed this CAO revision to the California State Water Resources Control Board, which appeal was denied by operation of law when the Water Board took no action. On September 30, 2015, BHC filed a writ petition
in the Superior Court challenging the CAO on several grounds. The trial court denied BHC’s petition, which denial was subsequently upheld by the California Court of Appeals, thereby ending BHC’s challenge to the CAO revision
naming BHC as a discharger. In the opinion of management, after consultation with legal counsel, the claims or actions related to the CAO are not expected to have a material adverse effect, individually or in the aggregate, on Dole’s
results of operations, financial condition or cash flows, because management believes the risk of loss is remote.
Balmoral International Land Holdings plc (“Balmoral”) is a related party of Dole plc, because the Chair of the Board of Dole plc is also the Chair of the Board of Balmoral. In the years ended December 31, 2023, December 31,
2022 and December 31, 2021, a subsidiary of Dole sub-leased or leased buildings to or from Balmoral, was in receipt of property management services from Balmoral and provided IT management services to Balmoral. For the years
ended December 31, 2023, December 31, 2022 and December 31, 2021, total net expenses related to Balmoral were $1.9 million, $2.0 million and $1.6 million, respectively.
Balkan Investment Company (“Balkan”) is a related party of the Company, because it is the beneficial owner of more than 5% of the Company’s Ordinary shares. In the year ended December 31, 2023, a subsidiary of Dole sub-
leased a portion of a building and provided other services to Balkan. Total income received for the years ended December 31, 2023 and December 31, 2022 were $0.2 million and $0.1 million, respectively, and not material for the year
ended December 31, 2021.
Mr. Murdock is a significant shareholder of Dole plc and former owner of Legacy Dole. Mr. Murdock owns, inter alia, the real estate company, Castle and Cooke, Inc. Net expenses from various companies of Mr. Murdock were
$5.3 million for the year ended December 31, 2023 and primarily relate to the lease of equipment. Net expenses amounted to $4.3 million and $0.6 million for the years ended December 31, 2022 and December 31, 2021, respectively.
See Note 22 “Investments in Unconsolidated Affiliates” for details of transactions with equity method investees, Note 16 “Leases” for details of lease-related liabilities with related parties and Note 19 “Contingencies” for details of
related party guarantees.
All other transactions with related parties were not material for the years ended December 31, 2023, December 31, 2022 and December 31, 2021, and other outstanding receivables from and payables to related parties were not
material as of December 31, 2023 and December 31, 2022.
F-61
Table of Contents
Common Stock
As of December 31, 2023, the Company was authorized to issue 600.0 million total shares of capital stock, consisting of 300.0 million shares of common stock and 300.0 million shares of preferred stock. As of December 31, 2023,
there were 94.9 million shares of common stock outstanding and no shares of preferred stock outstanding.
A rollforward of share activity as of December 31, 2023 and December 31, 2022 was as follows:
Amount
(In thousands)
Outstanding shares as of December 31, 2021 94,878
Net shares issued related to stock-based compensation 21
Outstanding shares as of December 31, 2022 94,899
Net shares issued related to stock-based compensation 30
Outstanding shares as of December 31, 2023 94,929
Stock-Based Compensation
The Company’s primary stock-based compensation plan is the 2021 Omnibus Incentive Compensation Plan (“the Plan”), under which to date, share options and two different types of restricted stock units (“RSUs”) have been
issued. The purpose of the Plan is to benefit and advance the interests of Dole by attracting, retaining and motivating participants and to compensate participants for contributions to the success of the Company. Upon exercise of stock
options or vesting of RSUs, new shares are issued from existing authorization. A total of 7.4 million shares of the Company’s common stock were initially reserved for issuance pursuant to the Omnibus Plan. Upon the exercise of any
option or vesting of any RSU, the related award is cancelled to the extent of the number of shares exercised or vested, and that number of shares is no longer available under the Plan. If any part of the award terminates without delivery of
the related shares, the extent of the award will then be available for future grant under the Plan. As of December 31, 2023, there were 5.7 million shares available for future grant under the Plan and 1.6 million shares available for future
issue under awards granted.
For the years ended December 31, 2023 and December 31, 2022, stock-based compensation expense related to the Plan was $6.1 million and $4.5 million, respectively, and was not material in the year ended December 31, 2021.
Stock-based compensation expense related to the Plan is recorded in selling, marketing, general and administrative expenses in the consolidated statements of operations.
Compensation expense for stock options is determined based on the grant date fair value of the award, calculated using the Black Scholes options-pricing model. Company stock options generally vest over a three year-service
period and expire ten years from the date of grant. Forfeitures are estimated on the date of grant based on historical forfeiture rates, and compensation expense is adjusted based on actual forfeitures. The weighted-average grant date fair
value per share of stock options granted during 2021 was $4.47.
In the years ended December 31, 2023 and December 31, 2022, additional RSU awards were issued under the Plan that vest over a one to three year-service period, and new RSU awards were issued under the Plan if certain market
conditions are met. Stock compensation expense under the awards that include a market condition is determined based on the grant date fair value of the award, calculated using a Monte Carlo simulation approach. These awards vest over
a three-year service period, and forfeitures are estimated on the date of grant based on historical forfeiture rates, with stock compensation expense adjusted based on actual forfeitures. The following table summarizes the assumptions used
for estimating the fair values of the stock options and RSUs with a market condition upon grant date:
F-62
Table of Contents
Type of Award Risk-free interest rate Expected volatility Dividend yield Expected term (years)
For the year ended December 31, 2023, a rollforward of share-based compensation awards outstanding by number and weighted-average exercise price of stock options or weighted-average grant-date fair value of RSUs and RSUs
with a market condition was as follows:
The total unrecognized compensation cost related to the unvested awards as of December 31, 2023 was $8.1 million. The remaining unrecognized compensation cost as of December 31, 2023 will be recognized over a weighted-
average period of approximately 1.5 years.
Dividends Declared
The following table summarizes dividends per share declared for the years ended December 31, 2023, December 31, 2022 and December 31, 2021:
Year Ended
December 31, 2023 December 31, 2022 December 31, 2021
Amount Amount Amount
Date Declared (U.S. Dollars) Date Declared (U.S. Dollars) Date Declared (U.S. Dollars)
11/15/2023 $ 0.08 11/16/2022 $ 0.08 12/2/2021 $ 0.08
8/16/2023 $ 0.08 8/22/2022 $ 0.08 5/28/2021 $ 0.03
5/17/2023 $ 0.08 5/24/2022 $ 0.08 1/29/2021 $ 0.01
3/6/2023 $ 0.08 3/14/2022 $ 0.08
The following table summarizes total dividends declared for the years ended December 31, 2023, December 31, 2022 and December 31, 2021:
Year Ended
December 31, 2023 December 31, 2022 December 31, 2021
(U.S. Dollars in thousands)
Dividends $ (30,750) $ (30,582) $ (24,699)
Dole’s ability to declare and pay dividends is subject to limitations contained in its various debt agreements. As of December 31, 2023, Dole had $445.5 million available to declare or pay a dividend. See Note 25 “Subsequent
Events” for further detail on dividends declared after December 31, 2023.
F-63
Table of Contents
Dole’s accumulated other comprehensive loss primarily consists of unrealized foreign currency translation gains and losses, unrealized derivative gains and losses and pension and postretirement obligation adjustments. A
rollforward of the changes in accumulated other comprehensive loss, disaggregated by component, was as follows for the years ended December 31, 2023, December 31, 2022 and December 31, 2021.
F-64
Table of Contents
The following table includes details about gross (gains) losses reclassified from accumulated other comprehensive loss by component of accumulated other comprehensive loss:
(Gains) losses reclassified out of Accumulated Other Comprehensive Loss in the year ended
December 31, 2023 December 31, 2022 December 31, 2021 Affected line item in the Statement of Operations
(U.S. Dollars in thousands)
Fair value of Derivatives:
Interest rate swap contracts $ (29,130) $ (5,976) $ 1,323 Interest expense
Cash flow hedges 8,461 (22,546) (2,399) Cost of sales
Cash flow hedges — — (1,342) Equity method earnings
Foreign currency translation (253) 5,445 — Other income, net
Foreign currency translation — — 1,721 Equity method earnings
Pension and other postretirement benefits (3,679) 1,548 2,134 Other income, net
Pension and other postretirement benefits — — (1,756) Equity method earnings
Total (gains) losses reclassified $ (24,601) $ (21,529) $ (319)
As of December 31, 2023, Dole’s investments in unconsolidated affiliates were $131.7 million, of which $128.3 million represented equity method investments, and $3.4 million represented investments in which Dole does not
have significant influence. As of December 31, 2022, Dole’s investments in unconsolidated affiliates were $124.2 million, of which $120.9 million represented equity method investments, and $3.3 million represented investments in
which Dole does not have significant influence. There are no significant investees in which Dole holds 20.0% or more of their voting stock that are not accounted for using the equity method of accounting.
Dole’s consolidated net income includes its proportionate share of the net income or loss of equity method investments in affiliates. When Dole records its proportionate share of net income, it increases equity method earnings in
the consolidated statements of operations and the carrying value in that investment in the consolidated balance sheets. Conversely, when Dole records its proportionate share of a net loss, it decreases equity method earnings in the
consolidated statements of operations and the carrying value in that investment in the consolidated balance sheets. Cash dividends received from investments in which Dole does not have significant influence are recorded in other
income, net, and have historically not been significant.
Legacy Dole
Prior to the Acquisition described in Note 4 “Acquisitions and Divestitures”, Total Produce had a 45.0% equity ownership interest in Legacy Dole. As a part of the Acquisition, Legacy Dole became a subsidiary of Dole plc and the
acquiree of Total Produce. As such, Legacy Dole results are included in the consolidated results of the Company from the Acquisition Date of July 29, 2021 to December 31, 2021.
F-65
Table of Contents
Summarized financial information for Legacy Dole for the period from January 1, 2021 to July 29, 2021, are as follows in the tables below. Unless otherwise noted, the results included herein represent Legacy Dole’s operations
rather than the share attributable to the Company.
Period Ended
July 29,
2021
The following table presents sales to and purchases from Legacy Dole for the period from January 1, 2021 to July 29, 2021:
Period Ended
July 29, 2021
(U.S. Dollars in thousands)
Sales $ 9,974
Purchases 30,856
F-66
Table of Contents
A rollforward of the carrying amount of Dole’s investments in unconsolidated affiliates as of December 31, 2023 and December 31, 2022 was as follows:
Amount
(U.S. Dollars in thousands)
Carrying amount as of December 31, 2021 $ 128,407
Share of income after tax 7,270
Additions 3,450
Subsidiary becoming equity method investment 712
Disposals (1,087)
Dividends received from investments (9,391)
Foreign exchange impact and other (5,127)
Carrying amount as of December 31, 2022 124,234
Share of income after tax 14,721
Additions 532
Subsidiary becoming equity method investment (84)
Disposals (1,046)
Dividends received from investments (9,388)
Foreign exchange impact and other 2,735
Carrying amount as of December 31, 2023 $ 131,704
The Company recognized income tax expense of $5.8 million, $4.4 million and $0.8 million during the years ended December 31, 2023, December 31, 2022, and December 31, 2021, respectively, related to equity method
investments.
For the year ended December 31, 2023 and December 31, 2022, step-up acquisitions were not material.
During the year ended December 31, 2021, in addition to the acquisition of Legacy Dole, the Company purchased additional shares in equity method investees, which resulted in the investees being consolidated as subsidiaries of
the Company from the date of acquisition of additional shares. For the year ended December 31, 2021, the following step-up acquisitions occurred:
• Moorberries BV: A grocery wholesaler based in the Netherlands, in which the Company acquired a 100% ownership interest.
• Fruktimporten Stockholm: A grocery wholesaler based in Sweden, in which the Company acquired an 83.2% ownership interest.
• OTC Organics BV: A company that specializes in organically grown products based in the Netherlands, in which the Company acquired a 100% ownership interest.
The aggregate total carrying value of these investees was $4.3 million as of the respective acquisition dates. As part of these acquisitions, the Company paid an aggregate $8.1 million in cash consideration. The total gain from these
step-up acquisitions was $7.7 million, and goodwill recorded was $15.2 million after considering the original fair value of the investment held.
During the year ended December 31, 2023, the Company disposed of its 50% investment in Skyview Cooling Co., a company based in the U.S, which had a carrying value of $1.1 million as of the disposal date. As a result of this
disposal, the Company recognized a gain of $0.5 million.
F-67
Table of Contents
During the year ended December 31, 2022, the Company disposed of its 50% investment in Suri Agro Fresh Private Limited, a fresh produce company based in India, which had a carrying value of $1.1 million as of the disposal
date. As a result of this disposal, the Company recognized a $0.6 million loss.
During the year ended December 31, 2021, the Company disposed of a 50% investment in Peviani S.p.A., a fresh produce company based in Italy, which had a carrying value of $9.4 million as of the disposal date. As a result of
this disposal, the Company recognized a $1.1 million gain.
Summarized aggregated financial information for all other equity method investments for the years ended December 31, 2023, December 31, 2022 and December 31, 2021 and as of December 31, 2023 and December 31, 2022 are
as follows in the tables below. Unless stated otherwise, the information reflects the amounts reported in the financial statements of the investment entities rather than the share attributable to the Company.
Year Ended
December 31, 2023 December 31, 2022 December 31, 2021
The following table presents sales to and purchases from other investments in unconsolidated affiliates for the years ended December 31, 2023, December 31, 2022 and December 31, 2021:
Year Ended
December 31, 2023 December 31, 2022 December 31, 2021
(U.S. Dollars in thousands)
Sales $ 127,642 $ 121,092 $ 109,965
Purchases 166,676 161,841 141,975
F-68
Table of Contents
The following tables presents amounts due from and to investments in unconsolidated affiliates as of December 31, 2023 and December 31, 2022:
The following table provides a reconciliation of equity method earnings in the consolidated statements of operations for the years ended December 31, 2023, December 31, 2022 and December 31, 2021:
Year Ended
December 31, 2023 December 31, 2022 December 31, 2021
(U.S. Dollars in thousands)
Equity method earnings - other than Legacy Dole $ 14,721 $ 7,270 $ 14,851
Equity method earnings - Legacy Dole — — 38,874
Deferred income tax expense related to Legacy Dole — — (10,441)
Share of equity method earnings 14,721 7,270 43,284
Impairment of original 45.0% investment in Legacy Dole — — (122,926)
Gain on preexisting contractual arrangements with Legacy Dole — — 93,000
Gain on release of deferred tax reserves attributable to Legacy Dole — — 20,124
Gain on release of Legacy Dole indemnities — — 4,403
Gain on release of cumulative equity reserves attributable to Legacy Dole — — 1,376
Net impact of step-up acquisition of Legacy Dole — — (4,023)
Gain on step-up acquisition of other equity method investments — — 7,670
Gain (loss) on disposal of equity method investments 470 (544) 1,096
Equity method earnings $ 15,191 $ 6,726 $ 48,027
Judgement is used when determining (i) whether an entity is a VIE; (ii) who are the variable interest holders; (iii) the elements and degree of control that each variable interest holder has; and (iv) ultimately which party is the
primary beneficiary (“PB”).
Unconsolidated VIEs
The VIEs in which Dole has variable interests but is not the PB are not consolidated and are accounted for using the equity method of accounting.
The Company holds variable interests in a fresh produce business, El Parque, which is considered a VIE in which Dole is not the PB. On December 16, 2016, the Company acquired shares in El Parque. As of December 31, 2023,
Dole has 50.000% of the series A shares and 49.995% of the series B shares in El Parque, with remaining series A shares held by Inversiones Dona Isidora Limitada (“IDI”) and remaining series B shares held by individual investors. The
El Parque Board of Directors comprises four members, two from Dole and two from IDI.
F-69
Table of Contents
Dole and IDI both have equal management representation on the board and equity participation, as only series A shares have voting rights. Further, all significant activities of El Parque are managed by the unanimous consent of the
board. Therefore, Dole does not meet the power criteria required to be considered the PB nor holds a controlling financial interest in El Parque.
During the years ended December 31, 2023, December 31, 2022 and December 31, 2021, the Company did not provide any financial support to or guarantees in respect of debt issued by El Parque. Dole’s maximum exposure to
loss represents the amount that would be absorbed by the Company in the event that all assets held in El Parque had no value. As of December 31, 2023 and December 31, 2022, Dole’s maximum exposure to loss in El Parque was
equivalent to the carrying value of its investment in the entity of $11.4 million and $10.7 million, respectively.
Prior to the Acquisition, Legacy Dole was also a VIE in which the Company was not the PB. Legacy Dole was determined to be a VIE, as the Company’s voting interest and economic interest were not proportionate. See Note 22
“Investments in Unconsolidated Affiliates” for further detail.
Consolidated VIEs
Dole consolidates the results of one VIE, EurobananCanarias S.A. (“EBC”), a Canary Islands fruit produce business, as Dole holds 50.0% of its shares and is deemed to be the PB. Since EBC’s incorporation in 1993, Dole has had
an economic interest of 50.0% and a power to appoint its managing director, who influences all decisions related to operations. Dole’s economic interest is not equal to the Company’s voting interest (decision making right for all relevant
activities), thus, the conditions of Dole being the PB are met, and EBC is consolidated. Dole has not provided any financial or other support to EBC during the periods presented within the consolidated financial statements.
Basic earnings (loss) per share is calculated by dividing the net income (loss) for the period attributable to shareholders of the Company by the weighted average number of shares outstanding during the period. Diluted earnings
(loss) per share is calculated by dividing the net income (loss) for the period attributable to shareholders of the Company by the weighted average number of shares outstanding after adjusting for the impact of all share options and RSUs
with a dilutive effect. The Company uses the treasury stock method to calculate the dilutive effect of outstanding equity awards for diluted earnings (loss) per share. For the year ended December 31, 2021, the weighted average number of
shares used within the calculation was adjusted for the impact of the Total Produce seven to one share exchange for existing shareholders that occurred immediately prior to the Merger and IPO Transaction.
F-70
Table of Contents
The following table presents basic and diluted earnings (loss) per share for each of the years ended December 31, 2023, December 31, 2022 and December 31, 2021:
Year Ended
December 31, 2023 December 31, 2022 December 31, 2021
(U.S. Dollars and shares in thousands, except per
share amounts)
Income from continuing operations $ 177,527 $ 168,230 $ 37,561
Less: Net income attributable to noncontrolling interests (31,646) (25,287) (24,212)
Income from continuing operations attributable to Dole plc 145,881 142,943 13,349
Loss from discontinued operations, net of income taxes (21,818) (56,447) (20,568)
Net income (loss) attributable to Dole plc $ 124,063 $ 86,496 $ (7,219)
The average market value of the Company’s shares used for the purpose of calculating the dilutive effect of share options and RSUs with a market condition is based on quoted market prices for the period during which the awards
were outstanding during the year. The calculation of diluted earnings (loss) per share for the years ended December 31, 2023, December 31, 2022 and December 31, 2021 does not include the effect of certain awards, because to do so
would be antidilutive.
Dole evaluated subsequent events through March 28, 2024, the date that Dole’s consolidated financial statements were issued.
On January 4, 2024, Dole paid a cash dividend of $0.08 per share, totaling $7.6 million, to shareholders for the third quarter dividend declared on November 15, 2023. On February 28, 2024, the Board of Directors of Dole plc
declared a cash dividend for the fourth quarter of 2023 of $0.08 per share, payable on April 4, 2024, to shareholders of record on March 21, 2024.
On February 27, 2024, Dole entered into a definitive agreement with PTF Holdings, LLC (“PTF Holdings”) pursuant to which Dole agreed to sell its 65.0% stake in Progressive Produce to PTF Holdings for gross proceeds of
$120.3 million in cash. The transaction closed on March 13, 2024.
On March 27, 2024, Dole and Fresh Express agreed to terminate the Fresh Express Agreement due to a failure to obtain regulatory approval. Dole also announced that it is in the process of pursuing alternative transactions through
which it will exit the Fresh Vegetables business.
F-71
I, Rory Byrne, certify that:
2. Based on my knowledge, this 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 report;
3. Based on my knowledge, the financial statements, and other financial information included in this 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 report;
4. The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control
over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, 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 report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the
period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to
materially affect, the registrant's internal control over financial reporting; and
5. The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's
board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process,
summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
2. Based on my knowledge, this 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 report;
3. Based on my knowledge, the financial statements, and other financial information included in this 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 report;
4. The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control
over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, 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 report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the
period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to
materially affect, the registrant's internal control over financial reporting; and
5. The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's
board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process,
summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
(1) the annual report on Form 20-F of the Company for the period ended December 31, 2023, (the “Annual Report”) fully complies with the requirements of section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and
(2) the information contained in the Annual Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
(1) the annual report on Form 20-F of the Company for the period ended December 31, 2023, (the “Annual Report”) fully complies with the requirements of section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and
(2) the information contained in the Annual Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
CREDIT AGREEMENT
dated as of
The Lenders Party Hereto From Time to Time, COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, as Pro Rata Administrative Agent and as Collateral Agent,
and
BANK OF AMERICA, N.A., as Term B Administrative Agent ___________________________ COÖPERATIEVE RABOBANK U.A., BOFA SECURITIES, INC.,
and
GOLDMAN SACHS BANK USA, as Joint Bookrunners and Joint Lead Arrangers for the Pro Rata Facilities
BOFA SECURITIES, INC., COÖPERATIEVE RABOBANK U.A.
and
GOLDMAN SACHS BANK USA, as Joint Bookrunners and Joint Lead Arrangers for the Term B Loan Facility
TABLE OF CONTENTS
Page
ARTICLE I Definitions
SECTION 1.01. Defined Terms 1
SECTION 1.02. Classification of Loans and Borrowings. 70
SECTION 1.03. Terms Generally. 70
SECTION 1.04. Accounting Terms; GAAP. 71
SECTION 1.05. Payments or Performance on Business Days. 73
SECTION 1.06. Rounding. 73
SECTION 1.07. Additional Alternative Currencies. 74
SECTION 1.08. Change of Currency. 74
SECTION 1.09. Times of Day. 75
SECTION 1.10. Letter of Credit Amounts. 75
SECTION 1.11. Exchange Rates. 75
SECTION 1.12. Administrative Agents. 75
SECTION 1.13. Pro Forma Calculations 76
SECTION 1.14. Dutch Terms. 77
SECTION 1.15. Irish terms. 78
SECTION 1.16. Danish Terms. 78
SECTION 1.17. Swedish Terms. 78
SECTION 1.18. Pro Rata Rates. 79
ARTICLE II The Credits
SECTION 2.01. Commitments. 79
SECTION 2.02. Loans and Borrowings. 80
SECTION 2.03. Requests for Borrowings. 80
SECTION 2.04. Swingline Loans. 82
SECTION 2.05. Letters of Credit 84
SECTION 2.06. Funding of Borrowings. 92
SECTION 2.07. [Reserved] 93
SECTION 2.08. Termination and Reduction of Commitments. 93
SECTION 2.09. Repayment of Loans; Evidence of Debt 94
SECTION 2.10. Prepayment of Loans 95
SECTION 2.11. Fees. 98
SECTION 2.12. Interest 99
SECTION 2.13. Alternate Rate of Interest; Illegality; Benchmark Replacement 100
SECTION 2.14. Increased Costs. 105
SECTION 2.15. Break Funding Payments 106
SECTION 2.16. Taxes. 106
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Setoffs. 111
SECTION 2.18. Mitigation Obligations; Replacement of Lenders 113
SECTION 2.19. Expansion Option. 114
SECTION 2.20. Extended Term Loans and Extended Revolving Commitments. 117
SECTION 2.21. Judgment Currency. 118
SECTION 2.22. Defaulting Lenders. 119
SECTION 2.23. Refinancing Amendments. 121
ARTICLE III Representations and Warranties
SECTION 3.01. Organization; Powers; Subsidiaries. 122
SECTION 3.02. Authorization; Enforceability. 122
896290.02-LACSR02A - MSW 2
SECTION 3.03. Governmental Approvals; No Conflicts. 122
SECTION 3.04. Financial Statements; No Material Adverse Change. 123
SECTION 3.05. Properties. 123
SECTION 3.06. Litigation. 123
SECTION 3.07. Compliance with Laws and Agreements. 124
SECTION 3.08. Investment Company Status 124
SECTION 3.09. Taxes. 124
SECTION 3.10. Solvency. 124
SECTION 3.11. Environmental Matters. 124
SECTION 3.12. Labor Relations. 124
SECTION 3.13. Disclosure. 125
SECTION 3.14. Federal Reserve Regulations. 125
SECTION 3.15. Security Interests. 125
SECTION 3.16. Anti-Terrorism Laws. 125
SECTION 3.17. Sanctions. 125
SECTION 3.18. Anti-Corruption Laws. 125
SECTION 3.19. COMI Regulation. 126
SECTION 3.20. ERISA.. 126
SECTION 3.21. Group. 126
ARTICLE IV Conditions
SECTION 4.01. Initial Borrowing. 126
SECTION 4.02. Certain Other Borrowings. 128
ARTICLE V Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information. 129
SECTION 5.02. Notices of Material Events. 130
SECTION 5.03. Existence; Conduct of Business 131
SECTION 5.04. Payment of Taxes. 131
SECTION 5.05. Maintenance of Properties; Insurance. 131
SECTION 5.06. Inspection Rights. 131
SECTION 5.07. Compliance with Laws; Compliance with Agreements. 132
SECTION 5.08. Use of Proceeds 132
SECTION 5.09. Additional Security and Guarantees. 133
SECTION 5.10. Maintenance of Ratings. 135
SECTION 5.11. Lender Calls. 135
SECTION 5.12. Designation of Subsidiaries. 135
SECTION 5.13. Further Assurances. 135
ARTICLE VI Negative Covenants
SECTION 6.01. Indebtedness. 136
SECTION 6.02. Liens. 139
SECTION 6.03. Fundamental Changes. 143
SECTION 6.04. Restricted Payments. 143
SECTION 6.05. Investments. 146
SECTION 6.06. Prepayments, Etc. of Indebtedness. 149
SECTION 6.07. Transactions with Affiliates. 150
SECTION 6.08. Changes in Fiscal Year 151
SECTION 6.09. Financial Covenant 151
SECTION 6.10. Restrictive Agreements. 151
SECTION 6.11. Dispositions 152
896290.02-LACSR02A - MSW 3
SECTION 6.12. Lines of Business 154
SECTION 6.13. [Reserved] 154
SECTION 6.14. Use of Proceeds 155
ARTICLE VII Events of Default
ARTICLE VIII The Administrative Agents and the Collateral Agent
ARTICLE IX Miscellaneous
SECTION 9.01. Notices. 165
SECTION 9.02. Waivers; Amendments. 167
SECTION 9.03. Expenses; Exculpation; Indemnity; Damage Waiver 170
SECTION 9.04. Successors and Assigns. 172
SECTION 9.05. Survival 176
SECTION 9.06. Counterparts; Integration; Effectiveness. 176
SECTION 9.07. Severability. 176
SECTION 9.08. Right of Setoff 177
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. 178
SECTION 9.10. WAIVER OF JURY TRIAL.. 178
SECTION 9.11. Headings. 179
SECTION 9.12. Confidentiality. 179
SECTION 9.13. USA PATRIOT Act 179
SECTION 9.14. Interest Rate Limitation. 180
SECTION 9.15. No Fiduciary Duty. 180
SECTION 9.16. Acknowledgement and Consent to Bail-In of Affected Financial Institutions. 180
SECTION 9.17. Joint and Several Obligations; Administrative Borrower 181
SECTION 9.18. Acknowledgement Regarding Any Supported QFCs 181
SECTION 9.19. Keepwell 182
SECTION 9.20. Secured Hedge Agreement and Cash Management Obligations. 183
SECTION 9.21. INTERCREDITOR AGREEMENTS. 183
SECTION 9.22. Parallel Liability. 184
SECTION 9.23. California Judicial Reference. 184
SCHEDULES
Schedule 1.01A – Agreed Security Principles
Schedule 1.01B – Existing Letters of Credit
Schedule 1.01C – Pro Rata Daily Compounded SOFR Formula
Schedule 2.01 – Commitments
Schedule 2.16(h) UK Treaty Lenders and UK Non-Bank Lenders
Schedule 3.01 – Subsidiaries
Schedule 3.05 – Material Real Property
Schedule 3.06 – Litigation
Schedule 5.09(d) – Post-Closing Matters
Schedule 6.01 – Existing Indebtedness
Schedule 6.02 – Existing Liens
Schedule 6.05(f) – Existing Investments
Schedule 6.07 – Affiliate Transactions
Schedule 9.01 – Administrative Agents’ Offices; Notices
896290.02-LACSR02A - MSW 4
EXHIBITS:
Exhibit A – Form of Assignment and Assumption
Exhibit B – Form of Term Note
Exhibit C – Form of Revolving Note
Exhibit D – Form of U.S. Security Agreement
Exhibit E – Form of Borrowing Request
Exhibit F – Form of Swingline Loan Notice
Exhibit G – Form of Compliance Certificate
Exhibit H – Form of Junior Lien Intercreditor Agreement
Exhibit I – Form of First Lien Intercreditor Agreement
Exhibit J-1 – Form of U.S. Tax Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit J-2 – Form of U.S. Tax Certificate (For Non-U.S. Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Exhibit J-3 – Form of U.S. Tax Certificate (For Non-U.S. Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit J-4 – Form of U.S. Tax Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Exhibit K – Form of Borrower Joinder
Exhibit L – Form of Solvency Certificate
CREDIT AGREEMENT (this “Agreement”), dated as of March 26, 2021, as amended by Amendment No. 1, Amendment No. 2, Amendment No. 3 and Amendment No. 4 (each as defined
below), among TOTAL PRODUCE LIMITED (F/K/A TOTAL PRODUCE PLC), a private company limited by shares, incorporated under the laws of Ireland with registration number: 427687
(“Total Produce”), TOTAL PRODUCE INTERNATIONAL HOLDINGS LIMITED, a private company limited by shares, incorporated under the laws of Ireland with registration number: 462700
(“TP International Holdings”), DOLE IRELAND LIMITED (F/K/A TOTAL PRODUCE IRELAND LIMITED), a private company limited by shares, incorporated under the laws of Ireland with
registration number: 117680 (“Dole Ireland”), TOTAL PRODUCE INTERNATIONAL LIMITED, a private company limited by shares, incorporated under the laws of Ireland with registration
number: 432227 (“TP International”), TOTAL PRODUCE C HOLDINGS LIMITED, a private company limited by shares, incorporated under the laws of Ireland with registration number: 518204
(“TP C Holdings”), TPH (UK) LIMITED, a private company limited by shares, incorporated under the laws of England and Wales (“TP UK”), NORDIC FRUIT HOLDING AB, a privat aktiebolag
organized under the laws of Sweden (“Nordic Fruit”), TOTAL PRODUCE USA HOLDINGS INC., a Delaware corporation (“TP US Holdings”), TOTAL PRODUCE HOLDINGS B.V., a private
company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands and registered with the Dutch trade register under number
24404725 (“TP Dutch Holdings”), DOLE NORDIC A/S (F/K/A TOTAL PRODUCE NORDIC A/S), a limited liability company (Aktieselskab) organized under the laws of Denmark with corporate
(CVR) number 29778108, (“Dole Nordic”), FINANTIC LIMITED, a private company limited by shares, incorporated under the laws of Ireland with registration number: 692022 (“Finco”), DOLE
FOOD COMPANY, INC., a North Carolina corporation (“DFC”), DOLE PLC, a public limited company, incorporated under the laws of Ireland with registration number: 606201 (the “Company,”
and, together with Total Produce, TP International Holdings, Dole Ireland, TP International, TP C Holdings, TP UK, Nordic Fruit, TP US Holdings, TP Dutch Holdings, Dole
896290.02-LACSR02A - MSW 5
Nordic, Finco and DFC, the “Initial Borrowers”), each other Borrower that becomes party hereto after the date hereof, the LENDERS from time to time party hereto, and COÖPERATIEVE
RABOBANK U.A., NEW YORK BRANCH, as Pro Rata Administrative Agent and as Collateral Agent, and BANK OF AMERICA, N.A., as Term B Administrative Agent.
The parties hereto agree to the following:
A. Definitions
a. Defined Terms
. As used in this Agreement, the following terms have the meanings specified below:
“Acquired Business” means Dole US Holdings and its Subsidiaries.
“Additional Borrowers” means any Restricted Subsidiary of the Company organized under the laws of the United States, upon execution and delivery of a Borrower Joinder Agreement by
such Restricted Subsidiary; provided that the Company shall have delivered to the Administrative Agents any documentation and other information about the applicable Additional Borrower as may
be reasonably requested in writing by any Administrative Agent or any Lender through any Administrative Agent that such Administrative Agent or such Lender, as applicable, reasonably
determines is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
“Additional Credit Extension Amendment” means an amendment to this Agreement (which may, at the option of the Administrative Agents and the Company, be in the form of an
amendment or an amendment and restatement of this Agreement) providing for any Incremental Term Loans, Replacement Term Loans, Extended Term Loans, Increased Commitments or Extended
Revolving Commitments which shall be consistent with the applicable provisions of this Agreement relating to Incremental Term Loans, Replacement Term Loans, Extended Term Loans, Increased
Commitments or Extended Revolving Commitments, as applicable, and otherwise reasonably satisfactory to each Administrative Agent and the Company.
“Administrative Agents” means each of the Pro Rata Administrative Agent and the Term B Administrative Agent, as applicable, subject to Section 1.12.
“Administrative Borrower” has the meaning provided in Section 9.17(b).
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control
with the Person specified.
“Agent Parties” has the meaning provided in Section 9.01(c).
“Agreed Security Jurisdiction” means each of Ireland, the United Kingdom, Denmark, the Netherlands and the United States.
“Agreed Security Principles” means the agreed guarantee and security principles set forth on Schedule 1.01.
“Agreement” has the meaning provided in the introductory paragraph hereto, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“Alternative Currencies” means (a) Dollars, (b) Euros, (c) Sterling, (d) Canadian Dollars, (e) SEK and (f) such other currencies as are acceptable to each Revolving Lender, each Issuing
Bank and the Pro Rata Administrative Agent.
“Alternative Currency Letter of Credit” means any Letter of Credit denominated in an Alternative Currency.
“Alternative Currency Revolving Loans” means any Revolving Loan denominated in an Alternative Currency.
896290.02-LACSR02A - MSW 6
“Amendment No. 1” means Amendment No. 1 to this Agreement, dated as of August 3, 2021, by and among the Borrowers, the Guarantors party thereto, the lenders party thereto, each
Administrative Agent and the Collateral Agent.
“Amendment No. 1 Effective Date” has the meaning set forth in Amendment No. 1.
“Amendment No. 2” means Amendment No. 2 to this Agreement, dated as of March 31, 2022, by and among the Borrowers, the Guarantors party thereto, the lenders party thereto, each
Administrative Agent and the Collateral Agent.
“Amendment No. 3” means Amendment No. 3 to this Agreement, dated as of May 24, 2023, by and among the Borrowers, the Guarantors party thereto, each Administrative Agent and the
Collateral Agent.
“Amendment No. 4” means Amendment No. 4 to this Agreement, dated as of June 2, 2023, by and among the Borrowers, the Guarantors party thereto, the lenders party thereto, each
Administrative Agent and the Collateral Agent.
“Anti-Corruption Laws” means the laws, rules, and regulations of the jurisdictions applicable to any Loan Party or its Restricted Subsidiaries from time to time concerning or relating to
bribery or corruption, including the U.S. Foreign Corrupt Practices Act of 1977, as amended.
“Anti-Terrorism Laws” means any laws, regulations, or orders of any Governmental Authority of the United States, the United Nations, United Kingdom, European Union or the Netherlands
relating to terrorism financing or money laundering, including, but not limited to, the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.), the Trading With the Enemy Act (50
U.S.C. § 5 et seq.), the International Security Development and Cooperation Act (22 U.S.C. § 2349aa-9 et seq.), the Executive Order No. 13224 on Terrorist Financing, effective September 24,
2001, the Patriot Act, and any rules or regulations promulgated pursuant to or under the authority of any of the foregoing.
“Applicable Administrative Agent” means (i) with respect to matters relating to any of the Pro Rata Facilities, the Pro Rata Administrative Agent, and (ii) with respect to matters relating to
the Term B Loans, the Term B Administrative Agent.
“Applicable Administrative Agent’s Office” means (i) with respect to matters relating to the any of the Pro Rata Facilities, the Pro Rata Administrative Agent’s Office, and (ii) with respect to
matters relating to the Term B Loans, the Term B Administrative Agent’s Office.
“Applicable Lenders” means (i) with respect to matters relating to the Revolving Facility, the Revolving Lenders, (ii) with respect to matters relating to the Term A Loans, the Term A
Lenders, (iii) with respect to matters relating to the Term B Loans, the Term B Lenders, (iv) with respect to matters relating to the Pro Rata Facilities, the Pro Rata Lenders and (v) with respect to
any other Class of Loans or Commitments, the Lenders holding such Class of Loans or Commitments.
“Applicable Percentage” means, with respect to any Lender, (a) with respect to Revolving Loans, L/C Exposure or Swingline Loans of any Class, subject to Section 2.22, a percentage equal
to a fraction the numerator of which is such Lender’s Revolving Commitment of such Class and the denominator of which is the aggregate Revolving Commitments of such Class of all Revolving
Lenders of such Class (or if the Revolving Commitments of such Class have terminated or expired, the Applicable Percentages shall be determined based upon such Lender’s share of the aggregate
Revolving Credit Exposures of such Class at that time) and (b) with respect to the Term Loans of any Class, a percentage equal to a fraction the numerator of which is such Lender’s outstanding
principal amount of the Term Loans of such Class and the denominator of which is the aggregate outstanding principal amount of the Term Loans of such Class.
896290.02-LACSR02A - MSW 7
“Applicable Prepayment Percentage” means, at any time, for purposes of Section 2.10(b)(iii), 50%; provided that (i) if the Senior Secured Net Leverage Ratio as at the last day of the most
recently ended Fiscal Year of the Company (as set forth in the Compliance Certificate delivered pursuant to Section 5.01(c) for the Fiscal Year of the Company then last ended) is less than or equal
to 2.30 to 1.00 but greater than 1.80 to 1.00, the Applicable Prepayment Percentage shall instead be 25% and (ii) if the Senior Secured Net Leverage Ratio as at the last day of the most recently
ended Fiscal Year of the Company (as set forth in the Compliance Certificate delivered pursuant to Section 5.01(c) for the Fiscal Year of the Company then last ended) is less than or equal to 1.80 to
1.00, the Applicable Prepayment Percentage shall instead be 0%.
“Applicable Rate” means:
(a) with respect to Revolving Loans and Term A Loans if the Ratings Condition is satisfied, (i) initially (x) 1.75% in the case of Revolving Loans and Term A Loans that are Eurocurrency
Loans or RFR Loans, (y) 0.75%, in the case of Revolving Loans and Term A Loans that are Base Rate Loans and (z) 0.525% in the case of Commitment Fees and (ii) thereafter, the following
percentages per annum, based upon the Consolidated Net Leverage Ratio as specified in the most recent Compliance Certificate received by the Pro Rata Administrative Agent pursuant to Section
5.01(c):
Pricing Level Consolidated Net Leverage Ratio Revolving Loans and Term A Loans that are Revolving Loans and Term A Commitment Fees
Eurocurrency Loans or RFR Rate Loans Loans that are Base Rate Loans
I Greater than 3.50x 2.25% 1.25% 0.675%
II Less than or equal to 3.50x but greater than 2.00% 1.00% 0.600%
3.00x
III Less than or equal to 3.00x but greater than 1.75% 0.75% 0.525%
2.50x
IV Less than or equal to 2.50x but greater than 1.50% 0.50% 0.450%
2.00x
V Less than or equal to 2.00x but greater than 1.25% 0.25% 0.375%
1.50x
VI Less than or equal to 1.50x 1.00% 0.00% 0.30%
(b) with respect to Revolving Loans and Term A Loans if the Ratings Condition is not satisfied, (i) initially (x) 2.00% in the case of Revolving Loans and Term A Loans that are Eurocurrency
Loans or RFR Loans, (y) 1.00%, in the case of Revolving Loans and Term A Loans that are Base Rate Loans and (z) 0.60% in the case of Commitment Fees and (ii)
896290.02-LACSR02A - MSW 8
thereafter, the following percentages per annum, based upon the Consolidated Net Leverage Ratio as specified in the most recent Compliance Certificate received by the Pro Rata Administrative
Agent pursuant to Section 5.01(c):
Consolidated Net Leverage Ratio Revolving Loans and Term A Loans that are Revolving Loans and Term Commitment Fees
Pricing Level Eurocurrency Loans or RFR Loans A Loans that are Base
Rate Loans
I Greater than 3.50x 2.75% 1.75% 0.825%
II Less than or equal to 3.50x but greater than 3.00x 2.25% 1.25% 0.675%
III Less than or equal to 3.00x but greater than 2.50x 2.00% 1.00% 0.60%
IV Less than or equal to 2.50x but greater than 2.00x 1.75% 0.75% 0.525%
V Less than or equal to 2.00x but greater than 1.50x 1.50% 0.50% 0.450%
VI Less than or equal to 1.50x 1.25% 0.25% 0.375%
(c) with respect to Term B Loans, (I) if the Ratings Condition is satisfied, (x) 2.00% in the case of Term B Loans that are Term B Term SOFR Loans and (y) 1.00%, in the case of Term B
Loans that are Base Rate Loans and (II) if the Ratings Condition is not satisfied, (x) 2.25% in the case of Term B Loans that are Term B Term SOFR Loans and (y) 1.25%, in the case of Term B
Loans that are Base Rate Loans;
(d) with respect to any Refinancing Term Loans or Refinancing Revolving Loans, as specified in the applicable Refinancing Amendment;
(e) with respect to any Extended Term Loan or any Revolving Loan incurred under an Extended Revolving Commitment, as specified in the applicable Additional Credit Extension
Amendment; and
(f) with respect to any Incremental Term Loan, as specified in the applicable Additional Credit Extension Amendment.
Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Net Leverage Ratio shall become effective as of the first Business Day immediately following
the date a Compliance Certificate is delivered pursuant to Section 5.01(c); provided that, “Pricing Level I” (as set forth in clause (a) or clause (b) above, as applicable) shall
896290.02-LACSR02A - MSW 9
apply as of the first Business Day after the date on which a Compliance Certificate was required to have been delivered pursuant to Section 5.01(c) but was not delivered, and shall continue to so
apply to and including the date on which such Compliance Certificate is so delivered (and thereafter the pricing level otherwise determined in accordance with this definition shall apply).
Any change in the Applicable Rate resulting from a change in the ratings of the Company from Moody’s or S&P shall become effective on the date of public announcement of the relevant
change in such ratings.
In the event that any financial statements previously delivered pursuant to Section 5.01(a) or (b) hereof were incorrect or inaccurate, and such inaccuracy, if corrected, would have led to the
application of a higher Applicable Rate for any period (an “Applicable Period”) than the Applicable Rate applied for such Applicable Period, then (i) the Company shall as soon as practicable
deliver to the Pro Rata Administrative Agent the correct financial statements for such Applicable Period, (ii) the Applicable Rate shall be determined as if the Level for such higher Applicable Rate
were applicable for such Applicable Period, and (iii) the applicable Borrowers shall within three Business Days of demand thereof by the Pro Rata Administrative Agent pay (or cause to be paid) to
the Pro Rata Administrative Agent the accrued additional interest owing as a result of such increased Applicable Rate for such Applicable Period, which payment shall be promptly applied by the
Pro Rata Administrative Agent in accordance with this Agreement. This paragraph shall not limit the rights of the Administrative Agents and Lenders with respect to any Event of Default.
1. “Approved Commercial Bank” means a commercial bank with a consolidated combined capital and surplus of at least $5,000,000,000.
“Approved Fund” means any Fund or other entity that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers, advises or manages a Lender.
“Arrangers” means the Pro Rata Arrangers and the Term B Arrangers.
“Asset Sale” means any Disposition of Property or series of related Dispositions of Property pursuant to clause (j), (k) or (r) of Section 6.11 which yields Net Cash Proceeds to the Company
or any of its Restricted Subsidiaries in excess of $15,000,000.
“Assignee Group” means two or more Lenders or Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed or advised by the same investment advisor or
manager.
“Assignment and Assumption” means an assignment and assumption agreement entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section
9.04), and accepted by the Applicable Administrative Agent, in the form of Exhibit A or any other form approved by the Applicable Administrative Agent.
“Attributable Receivables Indebtedness” at any time of determination, means (i) if a Permitted Receivables Facility is structured as a secured lending agreement, the principal amount of
Indebtedness outstanding thereunder of the Company or any of its Restricted Subsidiaries and/or (ii) if a Permitted Receivables Facility is structured as a factoring arrangement, the aggregate
purchase price paid to the Company or any of its Restricted Subsidiaries in respect of accounts receivable with a stated due date that is after such time of determination.
“Augmenting Lender” has the meaning assigned to such term in Section 2.19(b).
“Auto-Extension Letter of Credit” has the meaning provided in Section 2.05(b)(iii).
“Availability Period” means the period from and including the Amendment No. 1 Effective Date to but excluding the earlier of the Revolving Credit Maturity Date and the date of
termination of the Revolving Commitments in accordance with the provisions of this Agreement.
“Available Amount” means, at any time:
896290.02-LACSR02A - MSW 10
(i) the cumulative amount of cash and Cash Equivalent proceeds received by the Company (other than from a Subsidiary) from (A) the sale of, or capital contribution with respect to, its
Qualified Equity Interests following the Amendment No. 1 Effective Date and at or prior to such time, and (B) from the sale of the Qualified Equity Interests of any Unrestricted Subsidiary or any
minority Investments (other than any such sale to a Borrower or a Restricted Subsidiary) following the Closing Date and at or prior to such time so long as such Investments in this clause (B) were
originally made pursuant to Section 6.05(l); provided, in each case in this clause (B), that such amount does not exceed the amount of such Investment made pursuant to Section 6.05(l) as such
amount is reduced by any returns contemplated by clauses (iv) and (vi) below prior to such time; plus
(ii) 50% of cumulative Consolidated Net Income for the period, taken as a whole, commencing on the first day of the first full Fiscal Quarter commencing on or after the Amendment No. 1
Effective Date and ending on the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Administrative Agents at or prior to such time (provided that, in
no event shall the amount determined pursuant to this clause (ii) be less than $0); plus
(iii) the greater of (x) $57,000,000 and (y) 15.0% of LTM Consolidated EBITDA at such time; plus
(iv) (A) any dividend or other distribution by, or interest, returns of principal, repayments and similar payments by an Unrestricted Subsidiary or received in respect of minority Investments
and (B) in the case of the redesignation of an Unrestricted Subsidiary as, or merger, consolidation or amalgamation of an Unrestricted Subsidiary with or into, a Restricted Subsidiary after the
Closing Date, the fair market value of the Investment in such Unrestricted Subsidiary at the time of the redesignation of such Unrestricted Subsidiary as, or merger, consolidation or amalgamation of
such Unrestricted Subsidiary with or into, a Restricted Subsidiary, in each case, so long as such Investments were originally made pursuant to Section 6.05(l); provided, in each case, that such
amount does not exceed the amount of such Investment made pursuant to Section 6.05(l) as such amount is reduced by any returns contemplated by clause (vi) below prior to such time;
(v) to the extent not otherwise applied to prepay the Loans in accordance with the terms hereof, the amount of any Declined Proceeds accrued after the Amendment No. 1 Effective Date;
plus
(vi) without duplication, in the event that the Available Amount has been reduced as a result of an Investment made pursuant to Section 6.05(l), (x) the aggregate amount of all cash returns
received by the Company or any of its Restricted Subsidiaries in connection with the Disposition of any such Investment and (y) the aggregate amount of all cash returns received by the Company
or any of its Restricted Subsidiaries in the form of dividends, distributions, interest, returns of capital, profits, redemptions, releases of guarantees or repayments of loans or advances in respect of
such Investment (in each case, up to the amount of the original Investment as such amount is reduced by any returns contemplated by clause (iv) above prior to such time); minus
(vii) the amount of outstanding Investments made in reliance on the Available Amount prior to such time pursuant to Section 6.05(l); minus
(viii) the amount of Restricted Payments made in reliance on the Available Amount prior to such time pursuant to Section 6.04(g)(y); minus
(ix) the amount applied to make payments in respect of Specified Indebtedness in reliance on the Available Amount prior to such time pursuant to Section 6.06(a)(iv)(B).
896290.02-LACSR02A - MSW 11
“Available Revolving Commitment” means, as to any Revolving Lender on any date, the excess of (i) such Revolving Lender’s Revolving Commitment on such date over (ii) the
Outstanding Amount of such Revolving Lender’s Revolving Loans and L/C Exposure on such date.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the
implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of
the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms
or other financial institutions or their affiliates (other than through liquidation, administration, examinership or other insolvency proceedings).
“Bank Levy” means the Netherlands bank levy as set out in the bank levy act (Wet bankenbelasting), the United Kingdom bank levy as set out in the Finance Act 2011 (as amended) or any
levy or tax of a similar nature in force as at the date of this Agreement and imposed in any jurisdiction by reference to the assets or liabilities of a financial institution or other entity carrying out
financial transactions.
“Base Rate” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference
to the Pro Rata Base Rate, in the case of a Revolving Loan, Swingline Loan or Term A Loan, or the Term B Base Rate, in the case of a Term B Loan.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person
whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“Board” means the Board of Governors of the Federal Reserve System of the United States of America.
“Borrower Joinder Agreement” means a joinder to this Agreement in substantially the form of Exhibit K, pursuant to which an Additional Borrower shall become a Borrower hereunder.
“Borrowers” means (x) the Initial Borrowers and (y) upon the execution and delivery of any Borrower Joinder Agreement after the Amendment No. 1 Effective Date, any other Additional
Borrower party to such Borrower Joinder Agreement.
“Borrowing” means (a) Loans of the same Class, currency and Type, made, converted or continued on the same date and, in the case of Eurocurrency Loans or Term SOFR Loans, as to
which a single Interest Period is in effect and (b) a Swingline Loan.
“Borrowing Minimum” means (a) in the case of a Term SOFR Borrowing or a Pro Rata Daily Compounded SOFR Borrowing, $5,000,000, (b) in the case of a Eurocurrency Borrowing or a
SONIA Rate Borrowing, the Dollar Equivalent of $5,000,000, (c) in the case of a Base Rate Revolving Borrowing, $1,000,000 and (d) in the case of a Base Rate Term Borrowing, $500,000.
“Borrowing Multiple” means (a) in the case of a Term SOFR Borrowing or a Pro Rata Daily Compounded SOFR Borrowing, $1,000,000, (b) in the case of a Eurocurrency Borrowing
896290.02-LACSR02A - MSW 12
or a SONIA Rate Borrowing, the Dollar Equivalent of $1,000,000 and (c) in the case of a Base Rate Borrowing, $100,000.
“Borrowing Request” means a request by the Company or the applicable Borrower for a Revolving Borrowing in accordance with Section 2.03 or a request by the Company or the applicable
Borrower for a Borrowing of Term Loans pursuant to a written request, in each case in the form attached hereto as Exhibit E or otherwise in form reasonably satisfactory to Applicable
Administrative Agent.
1. “Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Applicable
Administrative Agent’s Office is located (which as of the Amendment No. 1 Effective Date is New York with respect to each of the Pro Rata Administrative Agent and the Term B Administrative Agent);
provided that:
i. if such day relates to any interest rate settings as to a Eurocurrency Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such Eurocurrency
Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Loan, means a Business Day that is also a TARGET Day;
ii. if such day relates to any interest rate settings as to a Eurocurrency Loan denominated in Canadian Dollars, means any such day which is not a legal holiday, or a day on which banking institutions are
authorized or required by law or other government action to close, in Toronto, Ontario;
iii. if such day relates to any interest rate settings as to a SONIA Rate Loan denominated in Sterling, means any such day which is not a legal holiday, or a day on which banking institutions are
authorized or required by law or other government action to close, in the United Kingdom;
iv. if such day relates to any interest rate settings as to a Eurocurrency Loan denominated in SEK, means any such day which is not a legal holiday, or a day on which banking institutions are authorized
or required by law or other government action to close, in Stockholm, Sweden;
v. if such day relates to any interest rate settings as to a Eurocurrency Loan denominated in a currency other than Euro or Canadian Dollars, means any such day on which dealings in deposits in the
relevant currency are conducted by and between banks in the London or other applicable offshore interbank market for such currency;
vi. if such day relates to any interest rate settings as to a Pro Rata Term SOFR Loan or Pro Rata Daily Compounded SOFR Loan, any fundings, disbursements, settlements and payments in respect of
such Pro Rata Term SOFR Loan or such Pro Rata Daily Compounded SOFR Loan, means a Business Day that is also an RFR Business Day; and
i. if such day relates to any fundings, disbursements, settlements and payments in a currency other than Canadian Dollars, SEK or Euro in respect of a Eurocurrency Loan denominated in a currency
other than Canadian Dollars, SEK or Euro, or any other dealings in any currency other than Canadian Dollars, SEK or Euro to be carried out pursuant to this Agreement in respect of any such
Eurocurrency Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.
a. “Canadian Dollars”, “CAD” or “Can$” means the freely transferable lawful money of Canada.
“Capital Expenditures” means, for any period, the additions to property, plant and equipment and other capital expenditures of the Company and its Restricted Subsidiaries that are
896290.02-LACSR02A - MSW 13
(or are required to be) set forth in a consolidated statement of cash flows of the Company for such period prepared in accordance with GAAP.
“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP as in effect on
December 15, 2018, and the amount of such obligations as of any date shall be the capitalized amount thereof determined in accordance with GAAP as in effect on such date that would appear on a
balance sheet of such Person prepared as of such date.
“Cash Collateralize” means to deposit in a Controlled Account or to pledge and deposit with or deliver to the Pro Rata Administrative Agent, for the benefit of one or more of the Issuing Banks or the
Revolving Lenders, as collateral for the L/C Exposure or obligations of Revolving Lenders to fund participations in respect of the L/C Exposure, cash or Deposit Account balances or, if the Pro Rata Administrative
Agent and each applicable Issuing Bank shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to the Pro Rata Administrative
Agent and each applicable Issuing Bank. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“Cash Equivalents” means (i) Can$, Dollars, Euros, Sterling, SEK and such other local currencies held by the Loan Parties and their Restricted Subsidiaries from time to time in the ordinary
course of their businesses, (ii) securities issued or directly fully guaranteed or insured by the governments of the United States, United Kingdom, 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 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
United States commercial bank or commercial bank of a foreign country recognized by the United States, (x) in the case of a United States 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 non-United States 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, at the time of acquisition thereof, 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, (vii) investments in money market funds which invest substantially all their assets in securities of the types described in clauses (i) through (vi) above and (viii)
instruments equivalent to those referred to in clauses (i) through (vii) above comparable in credit quality and tenor to those referred to in such clauses and customarily used by companies for cash
management purposes in any jurisdiction outside the United States in which the Company or any Subsidiary operates. Furthermore, 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.
896290.02-LACSR02A - MSW 14
“Cash Management Bank” means any Person that was an Administrative Agent, a Lender or an Affiliate of an Administrative Agent or a Lender (x) on the Closing Date or the Amendment
No. 1 Effective Date or (y) at the time the Company or any Subsidiary initially incurred any Cash Management Obligation (without regard to such Person ceasing to be an Administrative Agent,
Lender or an Affiliate of an Administrative Agent or Lender) to such Person.
“Cash Management Obligations” means obligations owed by the Company or any Restricted Subsidiary (or Person that was a Restricted Subsidiary at the time any of the following services
were provided) to any Cash Management Bank in respect of (1) any overdraft and related liabilities arising from treasury, depository and cash management services or any automated clearing house
transfers of funds and (2) the Company’s or any Subsidiary’s participation in commercial (or purchasing) card programs at any Lender or any Affiliate of a Lender (“card obligations”).
“Casualty Event” means, with respect to any property of the Company or any Restricted Subsidiary, any loss or damage to, or any condemnation or other taking by a Governmental Authority
of, such property for which the Company or any Restricted Subsidiary receives any insurance proceeds (other than proceeds of business interruption insurance) or condemnation awards, in each
case, in excess $15,000,000.
“Change in Law” means (a) the adoption of any law, treaty, rule or regulation after the Closing Date, (b) any change in any law, treaty, rule or regulation or in the interpretation or application
thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender or Issuing Bank (or, for purposes of Section 2.14(b), by any Lending Office of such Lender or
Issuing Bank or by such Lender’s or Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made
or issued after the Closing Date; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules,
guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee
on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities or any foreign regulatory authority, in each case pursuant to Basel III, shall in each case be
deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.
“Change of Control” means, in each case except as contemplated by the IPO Transactions:
(i) any “person” (as defined in Section 13(d) of the Exchange Act) shall become the owner, directly or indirectly, beneficially or of record, of shares representing more than 35% of the
aggregate ordinary voting power represented by the issued and outstanding common Equity Interests of the Company;
(ii) the Company shall cease to directly or indirectly own 100% of the Equity Interests of each other Borrower; or
(iii) a “change of control” or similar event shall occur as provided in any Material Indebtedness.
Notwithstanding the foregoing, a transaction will not be deemed to constitute or involve a Change of Control if (1) the Company becomes a direct or indirect wholly-owned subsidiary (the
“Sub Entity”) of a holding company and (2) holders of securities that represented 100% of the voting power of the Equity Interests of the Company immediately prior to such transaction (or other
securities into which such securities are converted as part of such merger or consolidation transaction), other than holders receiving solely cash in lieu of fractional shares, own directly or
896290.02-LACSR02A - MSW 15
indirectly at least a majority of the voting power of the Equity Interests of such holding company (and no Person or group other than any such holding company, owns, directly or indirectly, a
majority of the voting power of the Equity Interests of such holding company).
“Charges” has the meaning assigned to such term in Section 9.14.
“Class” when used in reference to any (x) Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Term A Loans, Term B Loans,
Incremental Term Loans of any series, Extended Term Loans of any series, Replacement Term Loans of any series, Swingline Loans, Refinancing Term Loans or Refinancing Revolving Loans and
(y) when used with respect to any Commitment, refers to whether such Commitment is a Term A Loan Commitment, Term B Loan Commitment, Revolving Commitment, Extended Revolving
Commitment of any series, Refinancing Revolving Commitment or Refinancing Term Loan Commitment.
“Closing Date” means the date on which the conditions specified in Section 4.01 of this Agreement were satisfied (or waived in accordance with Section 9.02 of this Agreement), which date
is March 26, 2021.
“Closing Date Transactions” means the effectiveness of this Agreement and the other transactions contemplated to occur pursuant to Section 4.01.
“CME” means CME Group Benchmark Administration Limited.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Collateral” means all the “Collateral” (or similar term) as defined in any Collateral Document and all Mortgaged Properties (or any equivalent term); provided that “Collateral” shall not
include any Excluded Assets.
“Collateral Agent” means Rabobank, in its capacity as collateral agent or pledgee in its own name under any of the Loan Documents, or any successor collateral agent.
“Collateral and Guarantee Requirement” means, at any time, the requirement that, subject to the Agreed Security Principles and Section 5.09(d):
1. the Collateral Agent shall have received each Collateral Document required to be delivered on the Closing Date pursuant to Section 4.01 (with respect to any Loan Party
existing on the Closing Date) or from time to time as required pursuant to Section 5.09 or Section 5.13 or the Collateral Documents (as and when required by such Sections or
by the Collateral Documents), subject to the limitations and exceptions of this Agreement and the other Loan Documents, duly executed by each Loan Party party thereto;
2. the Obligations shall have been guaranteed by the Company and each Borrower (other than with respect to its own Obligations) and each Restricted Subsidiary of the
Company (other than Excluded Subsidiaries except to the extent required pursuant to the Collateral Coverage Requirement) pursuant to the Guarantee Agreement; provided
that (x) notwithstanding the foregoing provisions, any Restricted Subsidiary in an Agreed Security Jurisdiction that Guarantees (other than Guarantees by a non-Loan Party of
Indebtedness of another non-Loan Party) any Material Indebtedness shall be a Guarantor hereunder (and satisfy the Collateral and Guarantee Requirement) for so long as it
Guarantees such Material Indebtedness and (y) the aggregate amount of total assets of wholly owned Subsidiaries of the Company organized in an Agreed Security
Jurisdiction that do not become Guarantors solely because such Subsidiary is an Immaterial Subsidiary (and not because such Subsidiary satisfies any other
896290.02-LACSR02A - MSW 16
clause of the definition of “Excluded Subsidiary”) shall not exceed 10.0% of the Consolidated Total Assets of the Company for the most recently ended Test Period (calculated
on a Pro Forma Basis) for which financial statements have been delivered pursuant to Section 5.01(a) hereof (it being understood that the calculation of total assets for such
purposes shall exclude any equity investment);
3. the Obligations and the Guaranty shall have been secured pursuant to the U.S. Security Agreement or the applicable Non-U.S. Security Document by a first-priority perfected
security interest in (i) all the Equity Interests of the Borrowers (other than the Company) and (ii) all Equity Interests (other than any Equity Interests that are Excluded Assets)
of each Restricted Subsidiary directly owned by any Loan Party, subject to exceptions and limitations otherwise set forth in this Agreement and the other Loan Documents (to
the extent appropriate in the applicable jurisdiction) (and the Collateral Agent shall have received certificates or other instruments representing all such Equity Interests (if
any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank, to the extent as and when expressly required pursuant to the
U.S. Security Agreement or the applicable Non-U.S. Security Document);
4. all Pledged Notes owing to any Loan Party that is evidenced by a promissory note shall have been delivered to the Collateral Agent to the extent expressly required pursuant to
the U.S. Security Agreement or the applicable Non-U.S. Security Document (and the Collateral Agent shall have received all such promissory notes, together with undated
instruments of transfer with respect thereto endorsed in blank, to the extent as and when expressly required pursuant to the U.S. Security Agreement or the applicable Non-
U.S. Security Document);
5. subject to limitations and exceptions of this Agreement and any other Loan Document, to the extent a Mortgage on any Material Real Property located in the United States is
required pursuant to Section 5.09(b) (each, a “Mortgaged Property”), the Collateral Agent shall have received (i) counterparts of a Mortgage with respect to such Mortgaged
Property duly executed and delivered by the Loan Party that is the record owner of such property, together with evidence such Mortgage has been duly executed,
acknowledged and delivered by a duly authorized officer or such other duly authorized signatory of each Loan Party party thereto, in form suitable for filing or recording in all
filing or recording offices that the Collateral Agent may reasonably deem necessary or desirable in order to create a valid and subsisting perfected Lien (subject only to Liens
described in clause (ii) below) on the property and/or rights described therein in favor of the Collateral Agent for the benefit of the Secured Parties, and evidence that all filing
and recording taxes and fees have been paid or otherwise provided for in a manner reasonably satisfactory to the Collateral Agent (it being understood that a mortgage
recording tax will be calculated on more than 100% of the fair market value of the applicable Mortgaged Property (as reasonably determined by the Company in good faith) at
the time the Mortgage is entered into), (ii) fully paid American
896290.02-LACSR02A - MSW 17
Land Title Association Lender’s policies of title insurance (or marked-up title insurance commitments having the effect of policies of title insurance) on the Mortgaged
Property naming the Collateral Agent as the insured for its benefit and that of the Secured Parties and their respective successors and assigns (the “Mortgage Policies”) issued
by a nationally recognized title insurance company reasonably acceptable to the Collateral Agent in form and substance and in an amount reasonably acceptable to the
Collateral Agent (not to exceed 100% of the fair market value of the real properties covered thereby as reasonably determined by the Company in good faith), insuring the
Mortgages to be valid subsisting first priority Liens on the property described therein, free and clear of all Liens other than Liens permitted pursuant to Section 6.02 or Liens
otherwise consented to by the Collateral Agent, each of which shall (A) to the extent reasonably necessary, include such coinsurance and reinsurance arrangements (with
provisions for direct access, if reasonably necessary) as shall be reasonably acceptable to the Collateral Agent, (B) contain a “tie-in” or “cluster” endorsement, if available, and
applicable, under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage
amount), and (C) have been supplemented by such endorsements as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to
usury, first loss, zoning, contiguity, doing business, public road access, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit
and so-called comprehensive coverage over covenants and restrictions), to the extent such endorsements are available in the applicable jurisdiction at commercially reasonable
rates; provided, however, that in lieu of a zoning endorsement the Collateral Agent shall accept a zoning report from a nationally recognized zoning report provider, (iii)
opinions from local counsel in each jurisdiction (A) where a Mortgaged Property is located regarding the enforceability and perfection of the Mortgage and any related fixture
filings and (B) where the applicable Loan Party granting the Mortgage on said Mortgaged Property is organized, regarding the due authorization, execution and delivery of
such Mortgage, in the case of (A) and (B), in form and substance reasonably satisfactory to the Collateral Agent, and (iv) a completed “life of the loan” Federal Emergency
Management Agency Standard Flood Hazard Determination with respect to each parcel of improved Mortgaged Property (together with a notice about special flood hazard
area status and flood disaster assistance), duly executed and acknowledged by the appropriate Loan Parties, and, to the extent required under Section 5.05 hereof, evidence of
flood insurance as required by Section 5.05 hereof; and
6. except as otherwise contemplated by this Agreement or any other Loan Document, all certificates, agreements, documents and instruments, including Uniform Commercial
Code financing statements and similar filings under other applicable laws and filings with the United States Patent and Trademark Office and United States Copyright Office,
in each case expressly required by the Collateral Documents to be filed, delivered,
896290.02-LACSR02A - MSW 18
registered or recorded to create the Liens intended to be created by the Collateral Documents and perfect such Liens, shall have been filed, registered or recorded or delivered
to the Collateral Agent for filing, registration or recording to the extent required by the applicable Collateral Documents (and as and when required by the applicable Collateral
Documents).
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary:
(A) the foregoing definition shall not require the creation or perfection of pledges of, security interests in, Mortgages on, or the obtaining of Mortgage Policies or taking other actions with respect to any of the
following (collectively, the “Excluded Assets”): (i) any lease, permit, license, contract or other agreement or any property subject to a purchase money security interest, Capital Lease Obligation or similar
arrangement, in each case permitted under this Agreement, to the extent that a grant of a security interest therein would violate or invalidate such lease, permit, license, contract or other agreement, Capital Lease
Obligations or purchase money arrangement or create a right of termination in favor of, or require the consent of, any other party thereto (other than a Loan Party or any of their Subsidiaries) after giving effect to the
applicable anti-assignment provisions of the Uniform Commercial Code or other applicable Law, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the
Uniform Commercial Code or other applicable Law notwithstanding such prohibition, (ii) any interest in fee-owned real property and improvements located thereon and fixtures relating thereto (other than Material
Real Properties located in the United States), (iii) any interest in leased real property and improvements located thereon and fixtures related thereto (including any requirement to deliver any survey or any landlord
waivers, estoppels and collateral access letters), (iv) motor vehicles, aircraft and other assets subject to certificates of title (except to the extent perfection of a security interest in such assets may be accomplished by
the filing of a Uniform Commercial Code financing statement or similar procedures under applicable foreign Laws or does not require any additional perfection steps), (v) Margin Stock and Equity Interests of any
Person other than a wholly-owned Restricted Subsidiary of the Company to the extent not permitted by the terms of such Person’s organizational or joint venture documents without the consent of a third party
equityholder that is not an Affiliate of any Borrower after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other applicable Laws, other than proceeds and receivables
thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code or other applicable laws notwithstanding such prohibition, (vi) any intent-to-use trademark or servicemark
application prior to the filing of a “statement of use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, that granting a security interest in such
trademark application prior to such filing would impair the enforceability or validity of such trademark application under applicable federal Law, (vii) any governmental licenses or state or local franchises, charters
and authorizations, to the extent a security in any such license, franchise, charter or authorization is prohibited or restricted thereby after giving effect to the anti-assignment provision of the Uniform Commercial
Code and other applicable Law, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code or other applicable Law notwithstanding
such prohibition or restriction, (viii) pledges and security interests prohibited or (to the extent) limited by applicable Law, rule or regulation (including the requirement to obtain consent of any Governmental
Authority to the extent such consent has not been obtained) after giving effect to the anti-assignment provisions of the Uniform Commercial Code and other applicable Law, (ix) letter of credit rights (except to the
extent perfection of a security interest in such assets may be accomplished by the filing of a Uniform Commercial Code financing statement or similar procedures under applicable foreign Laws or does not require
any additional perfection steps) and commercial tort claims with a value in an amount less than $10,000,000, (x) (a) payroll and other employee wage and benefit accounts, (b) sales tax accounts, (c) bona fide escrow
accounts for the benefit of unaffiliated third parties in connection with transactions otherwise permitted hereunder, and (d) fiduciary or trust accounts for the benefit of unaffiliated third parties, and, in the case of
clauses (a) through (d), the funds or other property held in or
896290.02-LACSR02A - MSW 19
maintained in any such account, in each case, (I) to the extent each such account is used solely for such purpose and (II) other than to the extent perfected by the filing of a UCC financing statement or similar
procedures under applicable foreign Laws or does not require any additional perfection steps or are proceeds of Collateral, (xi) any particular assets if the burden, cost or consequence of creating or perfecting such
pledges or security interests in such assets is excessive in relation to the benefits to be obtained therefrom by the Lenders under the Loan Documents as mutually agreed by the Company and the Administrative
Agents, (xii) any acquired property (including property acquired through acquisition or merger of another entity) subject to a permitted contractual obligation binding or relating to such property if at the time of such
acquisition the granting of a security interest therein or the pledge thereof is prohibited by such contractual obligation (in each case, not created in contemplation thereof) to the extent and for so long as such
contractual obligation prohibits such security interest or pledge after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other applicable Laws, other than proceeds and
receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code or other applicable Laws notwithstanding such prohibition and (xiii) any Equity Interests issued by, or
assets of, any Immaterial Subsidiary, not-for-profit Subsidiary, Unrestricted Subsidiary, special purpose Subsidiary or captive insurance Subsidiary; provided, however, that Excluded Assets shall not include any
proceeds, substitutions or replacements of any Excluded Assets referred to above and such proceeds, substitutions or replacements shall not constitute “Excluded Assets” (unless such proceeds, substitutions or
replacements would constitute Excluded Assets referred to above);
(B) the Collateral Agent in its sole discretion may grant extensions of time for the creation or perfection of security interests in, and Mortgages on, or obtaining of Mortgage Policies or taking other actions
with respect to, particular assets as required by any Loan Document (including extensions beyond the Closing Date and the Amendment No. 1 Effective Date); and
(C) Liens required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations (if any) set forth in this Agreement, the
applicable Collateral Documents and the Agreed Security Principles (with respect to any assets owned by any Loan Party that is not organized under the laws of the United States).
Notwithstanding anything to the contrary contained herein or in any other Loan Document, (x) no Loan Party shall be required to perfect security interests in any Collateral through control agreements and (y)
no actions in any jurisdiction that is not an Agreed Security Jurisdiction or required by the Law of any jurisdiction that is not an Agreed Security Jurisdiction shall be required in order to create a security interest in
any assets or to perfect or make enforceable such security interest (including property registered or applied-for in any jurisdiction that is not an Agreed Security Jurisdiction) it being understood that there shall be no
security agreement or pledge agreement governed under the Laws of any jurisdiction that is not an Agreed Security Jurisdiction or any requirement to make any filings in any such jurisdiction.
“Collateral Coverage Requirement” has the meaning set forth in Section 5.09(c).
“Collateral Documents” means, collectively, the U.S. Security Agreement, each Non-U.S. Security Document, each Mortgage, each security agreement, pledge agreement or other similar
agreement delivered to the Collateral Agent, the Applicable Administrative Agent or the Lenders pursuant to Section 5.09 or Section 5.13 and each of the other agreements, instruments or
documents executed by any Loan Party that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of any of the Secured Parties.
“Commitment” means a Revolving Commitment, Refinancing Revolving Commitment, Extended Revolving Commitment, Term A Loan Commitment, Term B Loan Commitment or
Refinancing Term Loan Commitment.
“Commitment Fee” has the meaning set forth in Section 2.11(a).
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Company” has the meaning specified in the preamble hereto.
896290.02-LACSR02A - MSW 20
“Company Materials” has the meaning assigned to such term in Section 5.01.
“Compliance Certificate” has the meaning assigned to such term in Section 5.01(c).
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated EBIT” means, for any period, the Consolidated Net Income (without giving effect to (x) any extraordinary gains or losses and (y) any gains or losses from sales of assets
(other than inventory sold in the ordinary course of business)) before (i) total interest expense (inclusive of amortization of deferred financing fees and any other original issue discount) of the
Company and its Restricted Subsidiaries determined on a consolidated basis for such period, and (ii) provision for taxes based on income and foreign withholding taxes (including in respect of
repatriated funds and any future taxes or other levies which replace or are intended to be in lieu of such taxes and any penalties and interest related to such taxes or arising from tax examinations), in
each case to the extent deducted (and not otherwise added back) in determining Consolidated Net Income for such period.
“Consolidated EBITDA” means, for any period, Consolidated EBIT for such period, 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 for such period or (in the case of clause (x)(vii) below) not included in determining Consolidated Net Income
for such period), the amount of (i) all depreciation and amortization expense for such period, (ii) any other non-cash charges, losses or expenses incurred in such period, (iii) the Transaction
Expenses and the amount of all fees and expenses and charges (including expenses of the type described in clause (x)(vi) below) incurred in connection with any actual or potential equity issuances,
public offering of equity, Investments, acquisitions, Dispositions, recapitalizations, mergers, option buyouts or the incurrence or refinancing, waiver, consent or amendment of any Indebtedness (in
each case, whether or not consummated) for such period, (iv) any losses attributable to the interest component of cross-currency hedging arrangements even if such transactions are treated for
GAAP purposes as foreign exchange transactions, (v) earn-out and contingent consideration obligations incurred or accrued in connection with any Permitted Acquisition or similar Investment and
paid or accrued during such period, (vi) any after-tax effect on income of extraordinary, non-recurring or unusual gains, income, losses, expenses or charges (including the effect of all fees and
expenses relating thereto), severance, relocation costs, integration costs, consolidation and costs related to the opening, closure, relocation and/or consolidation of plants and facilities, signing,
retention or completion costs and bonuses, recruiting costs, recruiting and hiring bonuses, transition costs, and taxes related to issuances of significant options and curtailments or modifications to
pension and post-retirement employee benefit plans and corporate reorganization shall be excluded in an amount for any period not to exceed, together with the amount of adjustments made
pursuant to clause (x)(vii) and clause (x)(xiii), for such period, the greater of (x) $76,000,000 and (y) 20% of Consolidated EBITDA for such period (prior to giving effect to any such increase
pursuant to this clause (x)(vi), clause (x)(vii) and clause (x)(xiii)); provided that the cap included in this clause (x)(vi) shall not limit any adjustment otherwise permitted to be made pursuant to this
clause (x)(vi) or clause (x)(vii) to the extent such adjustment is in connection with the Transactions, (vii) the amount of “run rate” cost savings, operating expense reductions and synergies related to
the Transactions or any other Specified Transaction projected by the Company in good faith to be realized as a result of actions that have been taken or initiated or are expected to be taken (in the
good faith determination of the Company), including any cost savings, expenses and charges (including restructuring and integration charges) in connection with, or incurred by or on behalf
896290.02-LACSR02A - MSW 21
of, any joint venture of the Company or any of the Restricted Subsidiaries (whether accounted for on the financial statements of any such joint venture or the Company or any of its Restricted
Subsidiaries) with respect to any Specified Transaction, within 18 months after such Specified Transaction; provided that (A) such cost savings are reasonably identifiable and factually supportable,
(B) no cost savings, operating expense reductions or synergies shall be added pursuant to this clause (x)(vii) to the extent duplicative of any expenses or charges relating to such cost savings,
operating expense reductions or synergies that are added back pursuant to another clause of this definition or the definition of “Pro Forma Basis” (it being understood and agreed that “run rate”
means the full recurring benefit that is associated with any action taken) and (C) the share of any such cost savings, expenses and charges with respect to a joint venture that are to be allocated to the
Company or any of the Restricted Subsidiaries shall not exceed the total amount thereof for any such joint venture multiplied by the percentage of income of such joint venture expected to be
included in Consolidated EBITDA for the relevant applicable periods; provided, that, (x) the aggregate amount of adjustments pursuant to this clause (x)(vii), together with the aggregate amounts
added back pursuant to clause (x)(vi) and clause (x)(xiii), shall not exceed the greater of (x) $76,000,000 and (y) 20% of Consolidated EBITDA for the four quarter period ending on any date of
determination (prior to giving effect to the addback of such items pursuant to clause (x)(vi), this clause (x)(vii) or clause (x)(xiii)) and (y) the cap included in this clause (x)(vii) shall not limit any
adjustment otherwise permitted to be made pursuant to this clause (x)(vii) or clause (x)(vi) to the extent such adjustment is in connection with the Transactions, (viii) any fees, costs and expenses
incurred by the Company or a Restricted Subsidiary relating to litigation, claims, investigations, proceedings and/or settlement relating to litigation, claims, investigations, proceedings or disputes;
provided, that the aggregate amount of such fees, costs and expenses incurred after the Closing Date (other than those incurred in connection with such litigation, claims, investigations, proceedings
or disputes existing on the Closing Date) shall not exceed $15,000,000 for any Test Period, with unused amounts being available in subsequent periods subject to a maximum of $50,000,000 for all
such periods, (ix) any costs or expenses incurred by a Borrower or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee
benefit plan or agreement or any stock subscription or stockholders agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of any Borrower or
net cash proceeds of issuance of Equity Interests of any Borrower (other than Disqualified Equity Interests), in each case, solely to the extent that such cash proceeds are excluded from the
calculation of the Available Amount, (x) costs incurred associated with, or in anticipation of, or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of 2002, in connection
with any equity offering (whether or not consummated), and the rules and regulations promulgated in connection therewith or other enhanced accounting functions and Public Company Costs and
costs and expenses incurred in connection with acquisitions, Investments, Dispositions, equity issuances and other transactions permitted by this Agreement, in any case whether or not successful
(including, for the avoidance of doubt, the effects of expensing all transaction-related expenses in accordance with FASB Accounting Standards Codification 805 and gains or losses associated with
FASB Accounting Standards Codification 460), (including integration and transition costs), consulting and accounting fees, legal fees, and other professional fees, (xi) non-recurring costs or
expenses incurred to procure and implement new enterprise resource planning information systems, (xii) costs or expenses arising from claims that would otherwise be indemnified or reimbursed, if
such claims exceeded any thresholds required in such underlying agreements, (xiii) costs or expenses arising from charitable contributions; provided, that, (A) the aggregate amount of such costs or
expenses added back pursuant to this
896290.02-LACSR02A - MSW 22
clause (x)(xiii), together with the aggregate amounts added back pursuant to clause (x)(vi) and clause (x)(vii), shall not exceed the greater of (x) $76,000,000 and (y) 20% of Consolidated EBITDA
for the four quarter period ending on any date of determination (prior to giving effect to the addback of such items pursuant to this clause (x)(xiii), clause (x)(vi) or clause (x)(vii)) and (B) the cap
included in this clause (x)(vi) shall not limit any adjustment otherwise permitted to be made pursuant to clause (x)(vi) or clause (x)(vii) to the extent such adjustment is in connection with the
Transactions, and (xiv) losses or discounts on sales of receivables and related assets in connection with any Permitted Receivables Facilities and (y) subtracting therefrom (i) to the extent included in
arriving at Consolidated EBIT for such period, the amount of non-cash gains during such period, (ii) the aggregate amount of all cash payments made during such period in connection with non-
cash charges incurred in a prior period, to the extent such non-cash charges were added back pursuant to clause (x)(ii) above (and, for the avoidance of doubt, not added back pursuant to any other
component of this definition) in a prior period and (iii) any gains attributable to the interest component of cross-currency hedging arrangements even if such transactions are treated for GAAP
purposes as foreign exchange transactions to the extent same were included in arriving at Consolidated EBIT for such period.
“Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the net income (or loss) of such Person and its Restricted Subsidiaries for such period, on a
consolidated basis, determined in accordance with GAAP, and without reduction for any dividends on preferred equity interests; provided, however, that:
(a) the Net Income of any Person that is not a Subsidiary or that is accounted for by the equity method of accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the relevant Person, in the case of a gain, or to the extent of any contributions or other payments by the relevant Person, in the case of a loss;
(b) the Net Income of any Person that is a Subsidiary that is not a Restricted Subsidiary shall be included only to the extent of the amount of dividends or distributions paid in cash to
the relevant Person;
(c) the cumulative effect of a change in accounting principles shall be excluded;
(d) any after-tax effect of income (loss) (x) from the early extinguishment of Indebtedness or Swap Agreements or other derivative instruments and (y) from sales or dispositions of
assets (other than in the ordinary course of business, which, for the avoidance of doubt, it shall be agreed that Dispositions of agricultural land in Hawaii substantially consistent with past practice of
Dole US Holdings and its Restricted Subsidiaries are in the ordinary course of business), including any reconstruction, re-commissioning or reconfiguration of fixed assets, abandoned and
discontinued operations, in each case, shall be excluded;
(e) any non-cash compensation expense recorded from grants and periodic remeasurements of stock appreciation or similar rights, stock options, restricted stock or other rights shall
be excluded;
(f) any non-cash impairment charge or asset write-off, in each case, pursuant to GAAP and the amortization of intangibles arising pursuant to GAAP shall be excluded;
(g) gains and losses resulting solely from fluctuations in foreign currencies shall be excluded;
(h) to the extent covered by insurance and actually reimbursed, or, so long as such amount is (i) not denied by the applicable carrier in writing and (ii) in fact reimbursed within 365
days of the date of such event (with a deduction for any amount so added back to the extent not so reimbursed within such 365 days), expenses with respect to liability or casualty
896290.02-LACSR02A - MSW 23
events shall be excluded and the proceeds of business interruption shall be deemed to increase Consolidated Net Income;
(i) to the extent actually reimbursed or reimbursable by third parties pursuant to indemnification or reimbursement provisions or similar agreements or insurance, fees, costs, expenses
or reserves incurred to the extent covered by indemnification provisions in any agreement in connection with any acquisition or disposition of any Person or line of business shall be excluded; and
(j) any unrealized or realized net gain or loss resulting from currency translation gains or losses impacting net income (including currency remeasurements of Indebtedness), any net
loss or gain resulting from hedge agreements for currency exchange risk associated with the above (and those resulting from intercompany Indebtedness) and any foreign currency translation gains
or losses shall be excluded.
“Consolidated Net Leverage Ratio” means, for any Test Period, the ratio of (a) Consolidated Total Net Indebtedness as of the last day of such Test Period to (b) Consolidated EBITDA for
such Test Period.,
“Consolidated Subsidiaries” means Subsidiaries that are consolidated with the Company in accordance with GAAP.
“Consolidated Total Assets” means, as of the date of any determination thereof, total assets of the Company and its Restricted Subsidiaries calculated in accordance with GAAP on a
consolidated basis as of such date.
“Consolidated Total Indebtedness” means, at any time, the sum, without duplication, of (i) the aggregate principal amount of Indebtedness of the Company and its Restricted Subsidiaries
outstanding as of such time calculated on a consolidated basis (other than Indebtedness described in clause (ii), (v), (vi), (vii) or (viii) of the definition of “Indebtedness”) (provided that (x) there
shall be included in Consolidated Total Indebtedness, any Indebtedness in respect of drawings under letters of credit to the extent not reimbursed within two Business Days after the date of such
drawing and (y) no Swap Agreement shall be included in Consolidated Total Indebtedness unless such Swap Agreement is not permitted by Section 6.01(l)) plus (ii) the principal amount of any
obligations of any Person (other than the Company or any Restricted Subsidiary) of the type described in the foregoing clause (i) that are Guaranteed by the Company or any Restricted Subsidiary
(whether or not reflected on a consolidated balance sheet of the Company).
“Consolidated Total Net Indebtedness” means at any time the excess of (i) Consolidated Total Indebtedness at such time over (ii) the aggregate amount of (x) unrestricted cash and Cash
Equivalents of the Company and its Restricted Subsidiaries at such time and (y) cash and Cash Equivalents restricted in favor of the Collateral Agent, any Administrative Agent or any Lender
(whether or not held in a pledged account) of the Company and its Restricted Subsidiaries at such time.
“Control” means, with respect to any Person, the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person, whether by contract or
otherwise.
“Control Agreements” means, collectively, those control agreements (if any) in form and substance reasonably acceptable to the Collateral Agent entered into among (a) the depository institution
maintaining any Deposit Account, (b) a Loan Party or Defaulting Lender, as applicable, and (c) the Collateral Agent, pursuant to which the Collateral Agent obtains control (within the meaning of the UCC) over such
Deposit Account.
“Controlled Account” means each Deposit Account that is subject to a Control Agreement.
896290.02-LACSR02A - MSW 24
“Corresponding Liabilities” means the Obligations of a Loan Party, excluding its Parallel Liability.
“Credit Agreement Refinancing Indebtedness” means any Indebtedness (other than Loans under this Agreement) consisting of pari passu secured loans, junior lien secured loans, or
unsecured loans or pari passu secured debt securities, junior lien secured debt securities or unsecured debt securities incurred or Guaranteed by Loan Parties following the Closing Date that are
designated by the Company in a certificate of a Responsible Officer of the Company delivered to each Administrative Agent as “Credit Agreement Refinancing Indebtedness”; provided that (i) such
loans or debt securities have a Weighted Average Life to Maturity that is not shorter than the Weighted Average Life to Maturity of the Term Loans refinanced thereby or a final maturity date that is
earlier than the final maturity date of such Term Loans and are not subject to mandatory redemption, repurchase, prepayment or sinking fund obligation (other than customary offers to repurchase
upon a change of control, asset sale or casualty event and customary acceleration rights after an event of default) prior to the maturity date of such Term Loans; provided that Credit Agreement
Refinancing Indebtedness may be incurred in the form of a bridge or other interim credit facility intended to be refinanced with long-term Indebtedness (and such bridge or other interim credit
facility shall be deemed to satisfy this clause (i) so long as (x) such credit facility includes customary “rollover” provisions which shall provide for the automatic extension, conversion or exchange
of such bridge loans or interim credit facility into long-term Indebtedness without any conditions precedent to such extension, conversion or exchange (other than due to a default of the type
described in clauses (h) and (i) of Article VII of this Agreement) and (y) assuming such credit facility were to be extended, converted or exchanged pursuant to the “rollover” provisions described in
the immediately preceding clause (x), such extended credit facility would comply with this clause (i)), (ii) such Indebtedness is not secured by any assets of the Company or any of its Restricted
Subsidiaries except for Liens permitted by Section 6.02(w), (iii) such Indebtedness is not incurred or Guaranteed by any Restricted Subsidiaries that are not Loan Parties, and (iv) the other terms and
conditions relating to such Indebtedness (other than interest rates, fees, rate floors, premiums, discounts, optional redemption or prepayment provisions, amortization, maturities and call protection)
are not in the aggregate materially more restrictive (when taken as a whole) than the terms of this Agreement as determined in good faith by the Company; provided that, it is agreed that to the
extent any financial maintenance covenant is added for the benefit of such (A) Refinancing Term Loans, no consent shall be required to the extent that such financial maintenance covenant is also
added for the benefit of each then-existing Class of Term Loans and Revolving Loans or (B) Refinancing Revolving Commitments, no consent shall be required to the extent that such financial
maintenance covenant is also added for the benefit of each then-existing Class of Revolving Commitments that then benefits from a financial maintenance covenant.
“Credit Event” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“Credit Party” has the meaning provided in Article VIII.
“CTA” means the UK Corporation Tax Act 2009.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, examinership, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
“Declined Proceeds” has the meaning provided in Section 2.10(b)(vii).
896290.02-LACSR02A - MSW 25
“Default” means any event or condition which constitutes an Event of Default or, which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
“Default Rate” has the meaning provided in Section 2.12(d).
“Defaulting Lender” means, subject to Section 2.22(b), any Lender that (a) has failed to (i) fund all or any portion of any Class of Loans within two Business Days of the date such Loans
were required to be funded hereunder unless such Lender notifies the Applicable Administrative Agent and the Company in writing that such failure is the result of such Lender’s good faith
determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not
been satisfied, or (ii) pay to the Applicable Administrative Agent, any Issuing Bank, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in
respect of its participation in Letters of Credit or Swingline Loans) within two Business Days of the date when due, (b) has notified the Company, the Applicable Administrative Agent or any
Issuing Bank or Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public
statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s good faith determination that a condition precedent to funding (which
condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after
written request by the Applicable Administrative Agent or the Company, to confirm in writing to the Applicable Administrative Agent and the Company that it will comply with its prospective
funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Applicable Administrative
Agent and the Company), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver,
custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit
Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting
Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership
interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or
permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the applicable
Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be
deemed to be a Defaulting Lender (subject to Section 2.22(b)) upon delivery of written notice of such determination to the Company, each Issuing Bank, the Swingline Lender and each Lender.
“Deposit Account” means a demand, time, savings, passbook, or similar account maintained with an organization engaged in the business of banking, including savings banks, savings and loan associations,
credit unions, and trust companies. Neither investment property nor accounts evidenced by an instrument shall constitute a Deposit Account for purposes of this Agreement.
“Designated Non-Cash Consideration” means the fair market value (as determined by the Company in good faith) of consideration received by the Company or any Restricted Subsidiary in
connection with a Disposition made pursuant to Section 6.11(j) that is not cash or Cash
896290.02-LACSR02A - MSW 26
Equivalents and is designated as “Designated Non-Cash Consideration” pursuant to a certificate of a Responsible Officer of the Company setting forth the basis of such fair market value (with the
amount of Designated Non-Cash Consideration in respect of any Disposition being reduced for purposes of Section 6.11(j) to the extent the Company or any Restricted Subsidiary converts the same
to cash or Cash Equivalents following the closing of the applicable Disposition).
“Disposition” means, with respect to any Property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof (in one transaction or in a series of
transactions and whether effected pursuant to a Division or otherwise), and the terms “Dispose” and “Disposed of” shall have correlative meanings, but excluding licenses, sublicenses, leases and
subleases entered into in the ordinary course of business, or consistent with past practice, or that are customarily entered into by companies in the same or similar lines of business.
“Disqualified Equity Interests” means any Equity Interest which, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is
exchangeable), or upon the happening of any event or condition (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (other
than solely for Qualified Equity Interests and cash in lieu of fractional shares of such Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control,
public equity offering or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control, public equity offering or asset sale event shall be subject to the prior
repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments and the expiration, cancellation, termination or Cash Collateralization
of any Letters of Credit in accordance with the terms hereof), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests and cash in lieu of fractional shares
of such Equity Interests and except as permitted in clause (a) above), in whole or in part, (c) requires the scheduled payments of dividends in cash (for this purpose, dividends shall not be considered
required if the issuer has the option to permit them to accrue, cumulate, accrete or increase in liquidation preference or if the Company has the option to pay such dividends solely in Qualified
Equity Interests and cash in lieu of fractional shares of such Equity Interests), or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would
constitute Disqualified Equity Interests, in each case, prior to the date that is 91 days after the Term B Loan Maturity Date; provided, that if such Equity Interest is issued to any current or former
employee or to any plan for the benefit of employees, directors, officers, members of management or consultants of the Company or its Subsidiaries or by any such plan to such employees,
directors, officers, members or management or consultants, such Equity Interest shall not constitute Disqualified Equity Interest solely because it may be required to be repurchased by the Company
or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s, director’s, officer’s, management member’s or consultant’s termination, death or
disability.
896290.02-LACSR02A - MSW 27
Currency, the equivalent amount thereof in Dollars as determined by the Pro Rata Administrative Agent or the applicable Issuing Bank, as the case may be, at such time on the basis of the Spot Rate
(determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.
“Disqualified Institution” means any competitor of the Company, the Acquired Business or any of their respective Restricted Subsidiaries (other than a bona fide debt fund or any investment
vehicle that is engaged primarily in making, purchasing, holding or otherwise investing in loans, commitments and similar extensions of credit in the ordinary course of business for financial
investment purposes and with respect to which no personnel involved with the investment in the relevant competitor, or the management, control or operation thereof, directly or indirectly,
possesses the power to direct or cause the investment policies of such fund, vehicle or entity) identified in writing to the Administrative Agents by the Company from time to time. The list of
Disqualified Institutions shall be available for inspection upon request by any Lender or Participant or any prospective Lender or participant.
“Dole Annual Financial Statements” means the audited consolidated balance sheet and related statement of operations and cash flows of Dole Foods for the fiscal year ended December 31,
2020.
“Dole Existing ABL Credit Agreement” means the revolving credit agreement among Dole US Holdings, Dole Foods, Solvest, Ltd., the various lending institutions party thereto, the other
parties thereto and Bank of America, N.A., as administrative agent, dated as of April 6, 2017, as the same may be amended, restated, amended and restated, supplemented or otherwise modified
from time to time.
“Dole Existing Credit Agreement” means the credit agreement among Dole US Holdings, Dole Foods, the various lending institutions party thereto, the other parties thereto and Morgan
Stanley Senior Funding, Inc., as administrative agent, dated as of April 6, 2017, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to
time.
“Dole Existing Indenture” means that certain Indenture, dated as of April 6, 2017, among Dole US Holdings, Dole Foods, the guarantors party thereto and Wilmington Trust, National
Association, as trustee, pursuant to which Dole Foods issued $300,000,000 aggregate principal amount of its 7.25% Senior Secured Notes due 2025.
“Dole Foods” has the meaning specified in the preamble hereto.
“Dole Historical Financials” means, collectively, the Dole Annual Financial Statements and the Dole Quarterly Financial Statements.
“Dole Quarterly Financial Statements” means the unaudited consolidated balance sheets and related statements of operations and cash flows of Dole Foods as of and for the fiscal quarter
ended March 31, 2021.
“Dole Refinancing” means the refinancing, repayment, satisfaction, discharge or redemption in full (including, without limitation, by depositing the required funds with the applicable trustee
with respect to a redemption for which a notice has been issued) of outstanding indebtedness of the Acquired Business under each of the Dole Existing ABL Credit Agreement, the Dole Existing
Credit Agreement and the Dole Existing Indenture.
“Dole US Holdings” means DFC Holdings, LLC, a Delaware limited liability company.
“Dollars” or “$” refers to lawful money of the United States of America.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority,
(b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established
896290.02-LACSR02A - MSW 28
in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee)
having responsibility for the resolution of any EEA Financial Institution.
“Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such
contract or record.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 9.04(b)(iii), (v), (vi) and (vii) (subject to such consents, if any, as may be required under
Section 9.04(b)(iii)).
“EMU Legislation” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.
“Environment” means ambient air, indoor air, surface water, groundwater, drinking water, land surface and subsurface strata and natural resources such as wetlands, flora and fauna.
“Environmental Claims” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of non-compliance or violation, investigations
or proceedings relating in any way to any violation (or alleged violation) by the Company or any of its Restricted Subsidiaries under any Environmental Law or any permit issued to the Company or
any of its Restricted Subsidiaries under any such law (hereunder “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 Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by
any Governmental Authority, including the common law, concerning the protection of the Environment, preservation or reclamation of natural resources, the management, Release or threatened
Release of any Hazardous Material, or the effect of Hazardous Materials on the Environment or to health and safety matters.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Company or any Restricted Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment
or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into the Environment or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in
a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
896290.02-LACSR02A - MSW 29
“ERISA Affiliate” means, with respect to the Company, any corporation or other trade or business (whether or not incorporated) that, together with the Company or any of its Restricted
Subsidiaries, is treated as a single employer under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302 of ERISA and Section 412 and 430 of the Code, is treated as a single
employer under Section 414 of the Code.
“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30 day
notice period is waived), (b) the failure to make any minimum required contribution determined under Section 412 of the Code, Section 430 of the Code, or Section 303 of ERISA to a Plan for any
plan year, (c) the existence with respect to any Multiemployer Plan of an “accumulated funding deficiency” (as defined in Section 431 of the Code or Section 304 of ERISA), whether or not waived,
(d) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, (e) the incurrence by the
Company or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan, (f) the receipt by the Company, any of its ERISA Affiliates, or any plan
administrator of any notice from the PBGC relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan, (g) the incurrence by the Company or any of its
ERISA Affiliates of any liability under Title IV of ERISA with respect to the withdrawal or partial withdrawal (including under Section 4062(e) of ERISA) from any Plan or Multiemployer Plan, or
(h) the receipt by the Company or any of its ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan from the Company or any of its ERISA Affiliates of any notice, concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent, within the meaning of Title IV of ERISA or is in “endangered” or “critical” status,
within the meaning of Section 432 of the Code or Section 305 of ERISA.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“Euro” and/or “EUR” means the single currency of the Participating Member States.
“Eurocurrency” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Pro Rata Adjusted Eurocurrency Rate, in the case of a Revolving Loan. Eurocurrency Loans may be denominated in Euros, Canadian Dollars or SEK.
“Event of Default” has the meaning assigned to such term in Article VII.
“Excess Cash Flow” means, for any period, (a) net cash flow provided by (used in) operating activities for such period as reported on the consolidated statements of cash flow of the
Company and its Restricted Subsidiaries for such period delivered under Section 5.01(a) (excluding amounts attributable to Unrestricted Subsidiaries except to the extent such Unrestricted
Subsidiaries’ net income is included in Consolidated Net Income) minus (b) the sum of, in each case to the extent not otherwise reducing net cash flow provided by (used in) operating activities in
such period, without duplication, (i) scheduled principal payments and payments of interest in each case made in cash on Indebtedness (other than Indebtedness under a revolving credit facility
except to the extent there is a corresponding reduction in commitments) during such period (including for purposes hereof, sinking fund payments, payments in respect of the principal components
under capital leases and the like relating thereto), in each case other than to the extent financed with the net proceeds of any equity issuance, Asset Sale, insurance or Indebtedness (excluding
Indebtedness under any revolving credit facility), (ii) optional prepayments of Indebtedness for borrowed money (other than the Loans) during such period in each case other than to the extent
financed with the net proceeds of any equity issuance, Asset
896290.02-LACSR02A - MSW 30
Sale, insurance or Indebtedness (excluding Indebtedness under any revolving credit facility) and mandatory prepayments of Capital Lease Obligations to the extent required due to a Disposition that
resulted in an increase to cash flow and not in excess of the amount of such increase; provided that in the case of any revolving Indebtedness such repayment shall only be included in this clause (ii)
to the extent that such repayment results in a permanent reduction of the commitments thereunder, (iii) without duplication of amounts deducted from Excess Cash Flow in prior periods, (A) the
aggregate amount of all Capital Expenditures made by the Company and its Restricted Subsidiaries during such period, (B) the aggregate consideration with respect to any Capital Expenditures
required pursuant to a binding contract or commitment, in each case to be paid in cash during such period by the Company or any of its Restricted Subsidiaries, the consummation of which is
delayed beyond the end of such period, and (C) at the option of the Company, the aggregate amount of Capital Expenditures contractually committed to be made (or is contemplated to be made
during the four fiscal quarter period of the Company following the end of such period) during the period of four consecutive Fiscal Quarters of the Company following the end of such period, in
each case, other than to the extent financed with the net proceeds of any equity issuance, Asset Sale, insurance or Indebtedness (excluding Indebtedness under any revolving credit facility); provided
that, (I) to the extent the aggregate amount of cash actually utilized to finance any such Capital Expenditure during such period is less than the amount required or expected to be paid in connection
with such Capital Expenditure during such period, the amount of such shortfall shall be added to the calculation of Excess Cash Flow on (x) the date such Capital Expenditure is consummated or
made or (y) the date the binding contract, lease or letter of intent with respect to such Capital Expenditure is terminated or the date on which such Capital Expenditure is no longer contemplated to
be made and (II) to the extent the aggregate amount actually utilized to finance any Capital Expenditure during any subsequent period of four consecutive fiscal quarters is less than the amount
deducted pursuant to clause (b)(iii)(C) above, the amount of the resulting shortfall shall be added to the calculation of Excess Cash Flow at the end of such subsequent period of four consecutive
fiscal quarters, (iv) without duplication of amounts deducted from Excess Cash Flow in prior periods, other than to the extent financed with the net proceeds of any equity issuance, Asset Sale,
insurance or Indebtedness (excluding Indebtedness under any revolving credit facility), cash sums expended for Investments and, at the option of the Company, any payments (including earn-outs)
required to be made pursuant to binding commitments (or any contractual obligation or binding commitment (a “Recurring Obligation”) that is contemplated to be entered into during the four fiscal
quarter period of the Company following the end of such period to the extent that such contractual obligation or binding commitment is a recurring Investment in the ordinary course of business
consistent with past practice) (the “Scheduled Investment Consideration”) in respect of any such Investment made or contractually committed (or which shall be contractually committed in
connection with a Recurring Obligation) to be made during the period of four consecutive fiscal quarters of the Company following the end of such period pursuant to (b), (f) (in the case of
Investments contemplated on the Closing Date), (h), (i), (m), (p), (q) and (t) of Section 6.05 during such period, for Dispositions permitted pursuant to Section 6.11, and for Restricted Payments and
at the option of the Company, any payments required to be made pursuant to binding commitments (the “Scheduled Restricted Payment Consideration”) in respect of any such Restricted Payment
made or contractually committed to be made during the period of four consecutive fiscal quarters of the Company following the end of such period pursuant to (c), (g) (to the extent made from the
cumulative Consolidated Net Income portion of the Available Amount), and (l) (with respect to any Transaction Expenses) of Section 6.04 during such period, in each case, whether successful or
not; provided that to the extent the aggregate amount actually
896290.02-LACSR02A - MSW 31
utilized to finance such Investments or Restricted Payments during such subsequent period of four consecutive fiscal quarters is less than the Scheduled Investment Consideration or the Scheduled
Restricted Payment Consideration, as applicable, the amount of the resulting shortfall shall be added to the calculation of Excess Cash Flow at the end of such subsequent period of four consecutive
fiscal quarters, and (v) any amount that is listed (or would be listed to the extent such financial statements were prepared in accordance with IFRS) as a “put option obligation” in the most recent
audited financial statements of the Company delivered in accordance with Section 5.01(a).
“Excess Cash Flow Payment Date” means the date occurring ten (10) Business Days after the required delivery date set forth in Section 5.01(a) for the audited financial statements for the
Company and its Restricted Subsidiaries (commencing with such audited financial statements for the Fiscal Year ending December 31, 2022).
“Excess Cash Flow Payment Period” means, with respect to any Excess Cash Flow Payment Date, the immediately preceding Fiscal Year of the Company commencing with the Fiscal Year
ending December 31, 2022.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Excluded Assets” has the meaning assigned to such term in the definition of “Collateral and Guarantee Requirement”.
“Excluded Subsidiary” means (a) any Subsidiary that is not a wholly owned Subsidiary of a Borrower or a Guarantor on the Closing Date or on the date such Person became a Subsidiary, (b) subject to
Section 6.03(e), any Subsidiary (an “Immaterial Subsidiary”) of a Guarantor that does not have total assets in excess of 2.5% of Consolidated Total Assets of the Company for the most recently ended Test Period
(calculated on a Pro Forma Basis) for which financial statements have been delivered pursuant to Section 5.01(a) (it being understood that the calculation of total assets for such purposes shall exclude any equity
investment), (c) any Subsidiary that is prohibited by applicable Law (whether on the Closing Date or thereafter) or contractual obligations existing on the Closing Date (or, in the case of any newly acquired
Subsidiary, in existence at the time of acquisition but not entered into in contemplation thereof) from guaranteeing the Obligations (after taking into account any applicable guarantee limitations in accordance with
local law) or if guaranteeing the Obligation would require governmental (including regulatory) or other third-party (other than a Loan Party) consent, approval, license or authorization (unless such consent, approval,
license or authorization has been obtained), (d) any other Subsidiary with respect to which the Company and the Collateral Agent reasonably agree that the burden or cost or other consequences (including any
adverse tax consequences) of providing a Guarantee shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (e) any direct or indirect Subsidiary of the Company organized in a jurisdiction
other than an Agreed Security Jurisdiction, (f) any Subsidiary with respect to which the provision of a guarantee and/or the granting of security over assets by such Subsidiary could reasonably be expected to result in
adverse tax consequences to it, the Company, any other Borrower or any of the Borrowers’ direct or indirect Subsidiaries, in each case, as determined in good faith by the Company and notified in writing to the
Administrative Agents, (g) any not-for-profit Subsidiaries, (h) any Unrestricted Subsidiaries, (i) any special purpose entities, (j) any captive insurance subsidiaries, (k) any Subsidiary which is not required to become
a Guarantor pursuant to the Agreed Security Principles, (l) any Subsidiary to the extent becoming a Guarantor and/or granting security over its assets would result in a breach of the fiduciary duties of the directors (or
equivalent) of such Subsidiary or could reasonably be expected to result in personal or criminal liability of any director (or equivalent), in each case as determined in good faith by the Company and notified in
writing to the Administrative Agents, (m) any direct or indirect Subsidiary of Dole US Holdings that is a Non-U.S. Subsidiary and (n) any Subsidiary of the Company which is not already a Guarantor and which is
not required to become a Guarantor as a result of the Borrowers being in compliance with the Collateral Coverage Requirement as of the most recent date on which the Collateral Coverage Requirement was tested
under Section 5.09(d), provided that such Subsidiary shall have been a Subsidiary as of such date.
896290.02-LACSR02A - MSW 32
For the avoidance of doubt, no Borrower shall constitute an Excluded Subsidiary and no Restricted Subsidiary that becomes a Guarantor pursuant to the Collateral and Guarantee Requirement or the Collateral
Coverage Requirement shall constitute an Excluded Subsidiary.
“Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or the grant by
such Loan Party of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the
Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason not to constitute an “eligible contract
participant” as defined in the Commodity Exchange Act at the time the Guarantee of such Loan Party becomes effective with respect to such related Swap Obligation.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to, or required to be withheld or deducted from a payment to, any Administrative Agent, any Lender or any
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of any Loan Party under any Loan Documents, (a) Taxes imposed on (or measured by) net income
(however denominated), franchise Taxes and branch profits Taxes, in each case, (i) imposed as a result of such recipient being organized or having its principal office located in or, in the case of any
Lender, having its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof), or (ii) that are Other Connection Taxes, (b) in the case of a Foreign
Lender making Loans to a U.S. Borrower, any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Foreign Lender with respect to an applicable interest in a
Loan made to a U.S. Borrower pursuant to a Law in effect at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office), except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new lending office (or assignment), to receive additional amounts with respect to such withholding Tax
pursuant to Section 2.16, (c) any withholding Tax that is attributable to such recipient’s failure to comply with Section 2.16(e) or (f), (d) with respect to any Loans made by a Lender to an Irish
Borrower, any deduction or withholding for or on account of Tax imposed by Ireland on any amounts payable to or for the account of such Lender, if on the date on which the payment falls due (x)
the payment could have been made to the relevant Lender without any withholding or deduction for or on account of such Tax if the Lender had been an Irish Qualifying Lender, but on that date the
Lender is not (or has ceased to be) an Irish Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration,
or application of) any law or treaty or any published practice or published concession of any relevant Governmental Authority) or (y) the relevant Lender is an Irish Qualifying Lender solely by
virtue of being an Irish Treaty Lender and the Loan Party making the payment is able to demonstrate that the payment could have been made to the Lender without such deduction or withholding
had the Lender complied with its obligations in Section 2.16(j), (e) with respect to any Loans made to a UK Borrower, any deduction or withholding for or on account of Tax imposed by the United
Kingdom on any amounts payable to or for the account of such Lender, if on the date on which the payment falls due (1) that Lender is not a UK Qualifying Lender other than where it was a UK
Qualifying Lender before such date and has ceased to be such a UK Qualifying Lender as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation,
administration, or application of) any law or UK Treaty or any published practice or published concession of any relevant taxing authority, (2) the relevant Lender is a UK Qualifying Lender solely
by virtue of category (B) of the definition of UK
896290.02-LACSR02A - MSW 33
Qualifying Lender and: (x) an officer of HM Revenue & Customs has given (and not revoked) a direction (a “Direction”) under section 931 of the ITA which relates to the payment and that Lender
has received from the Loan Party making the payment a certified copy of that Direction; and (y) the payment could have been made to the Lender without any UK Tax Deduction if that Direction
had not been made, (3) the relevant Lender is a UK Qualifying Lender solely by virtue of category (B) of the definition of UK Qualifying Lender and: (x) the relevant Lender has not given a UK
Tax Confirmation to the UK Borrower; and (y) the payment could have been made to the Lender without any UK Tax Deduction if the Lender had given a UK Tax Confirmation to the UK
Borrower, on the basis that the UK Tax Confirmation would have enabled the UK Borrower to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of
section 930 of the ITA, or (4) the relevant Lender is a UK Treaty Lender and the UK Borrower is able to demonstrate that the payment could have been made to the Lender without the UK Tax
Deduction had that Lender complied with its obligations under Section 2.16(h)(iv) and Section 2.16(h)(v), (f) any U.S. federal withholding Taxes imposed under FATCA, (g) any U.S. federal
backup withholding under Section 3406 of the Code, (h) any Bank Levy, (i) with respect to any Loans made to a Borrower organized under the laws of the Netherlands (a “Dutch Borrower”), any
Dutch Tax that arises as a result of any Lender having a substantial interest (aanmerkelijk belang) as defined in the Dutch Income Tax Act 2001 (Wet inkomstenbelasting 2001) in a Dutch Borrower
and (j) any Tax imposed on the basis of the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021) as in force and at the rate as of the date of this Agreement.
“Existing Letter of Credit” means each letter of credit issued prior to the Amendment No. 1 Effective Date by a Person that shall be an Issuing Bank and listed on Schedule 1.01B.
“Existing Letter of Credit Termination Date” means an Existing Letter of Credit’s stated termination date as specified on Schedule 1.01B.
“Existing Term Loan Class” has the meaning set forth in Section 2.20(a).
“Existing Total Produce RCFs” means each of (A) that certain Revolving Credit Facility Agreement, dated as of July 27, 2018, among Total Produce, the subsidiaries of Total Produce and
other parties party thereto from time to time and The Governor and Company of the Bank of Ireland, (B) that certain Revolving Credit Facility Agreement, dated as of September 23, 2016, among
Total Produce, the subsidiaries of Total Produce and other parties party thereto from time to time and HSBC Bank plc, (C) that certain Revolving Credit Facility Agreement, dated as of June 11,
2015, among Total Produce, the subsidiaries of Total Produce and other parties party thereto from time to time and Danske Bank A/S, (D) that certain Revolving Credit Facility Agreement, dated as
of October 26, 2018, among Total Produce, the subsidiaries of Total Produce and other parties party thereto from time to time and Coöperatieve Rabobank U.A., (E) that certain Revolving Credit
Facility Agreement, dated as of June 29, 2017, among Total Produce, the subsidiaries of Total Produce and other parties party thereto from time to time and Coöperatieve Rabobank U.A., (F) that
certain Revolving Credit Facility Agreement, dated as of November 30, 2015, among Total Produce, the subsidiaries of Total Produce and other parties party thereto from time to time and Ulster
Bank Ireland Limited and (G) that certain Revolving Credit Facility Agreement, dated as of March 5, 2019, among Total Produce, the subsidiaries of Total Produce and other parties party thereto
from time to time and The Bank of Montreal, in each case as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Extended Revolving Commitments” means revolving credit commitments established pursuant to Section 2.20 that are substantially identical to the Revolving Commitments except
896290.02-LACSR02A - MSW 34
that such revolving credit commitments may have a later maturity date and different provision with respect to interest rates and fees than those applicable to the Revolving Commitments.
“Extended Term Loans” has the meaning set forth in Section 2.20(a).
“Extending Term Lender” has the meaning provided in Section 2.20(c).
“Extension Election” has the meaning set forth in Section 2.20(c).
“Extension Request” has the meaning provided in Section 2.20(a).
“FATCA” means Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more
onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or
successor version described above), and any intergovernmental agreements (and any related laws, regulations or official administrative guidance) implementing the foregoing.
“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended from time to time, and the rules and regulations thereunder, and any successor thereto.
“Federal Funds Rate” means the Pro Rata Federal Funds Rate or the Term B Federal Funds Rate, as the context may require.
“Fee Letter” means the Fee Letter, dated as of February 16, 2021, by and among the Administrative Agents, Total Produce and the other parties thereto.
“Financial Covenant” means the covenant in Section 6.09.
“Financial Officer” means the chief financial officer, finance director, principal accounting officer, treasurer, or controller of the Company.
“Finco” has the meaning specified in the preamble hereto.
“First Lien Intercreditor Agreement” means an intercreditor agreement, substantially in the form of Exhibit I (with such changes thereto as are reasonably acceptable to the Collateral Agent),
by and between the Collateral Agent and the collateral agent for one or more classes of Credit Agreement Refinancing Indebtedness or Incremental Substitute Indebtedness that are intended to be
secured by Liens ranking pari passu with the Liens securing the Obligations.
“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
“Fiscal Year” means each fiscal year of the Company and its Subsidiaries, which ends on December 31.
“Flood Insurance Laws” means, collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act
of 1973 as now or hereafter in effect or any successor statute thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (iv) the
Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (v) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or
any successor statute thereto.
“Floor” means a rate of interest equal to 0.00%.
“Foreign Lender” means any Lender or Issuing Bank that is not a United States person within the meaning of Section 7701(a)(30) of the Code.
“Foreign Plan” means any pension plan, benefit plan, fund (including any superannuation fund) or other similar program established, maintained or contributed to by the Company or any of
its Restricted Subsidiaries for the benefit of employees of the Company or any of its Restricted Subsidiaries employed and residing outside the United States (other than any plans, funds or other
similar programs that are maintained exclusively by a Governmental Authority), which plan, fund or other similar program provides, or results in, retirement income or a deferral of income in
contemplation of retirement, and which plan is not subject to ERISA.
896290.02-LACSR02A - MSW 35
“Foreign Plan Event” means, with respect to any Foreign Plan, (a) the existence of unfunded liabilities in excess of the amount permitted under any applicable law, or in excess of the amount
that would be permitted absent a waiver from a Governmental Authority, (b) the failure to make the required contributions or payments, under any applicable law, on or before the due date for such
contributions or payments, (c) the receipt of a notice from a Governmental Authority relating to the intention to terminate any such Foreign Plan or to appoint a trustee or similar official to
administer any such Foreign Plan, or alleging the insolvency of any such Foreign Plan, (d) the incurrence of any liability by the Company or any of its Restricted Subsidiaries under applicable law
on account of the complete or partial termination of such Foreign Plan or the complete or partial withdrawal of any participating employer therein or (e) the occurrence of any transaction that is
prohibited under any applicable law and that could reasonably be expected to result in the incurrence of any liability by the Company or any of its Restricted Subsidiaries, or the imposition on the
Company or any of its Restricted Subsidiaries of any fine, excise tax or penalty resulting from any noncompliance with any applicable law.
“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to any Issuing Bank, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Exposure with respect to
Letters of Credit issued by such Issuing Bank other than L/C Exposure as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with
the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s Applicable Percentage of outstanding Swingline Loans other than Swingline Loans as to which such Defaulting Lender’s
participation obligation has been reallocated to other Revolving Lenders.
“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit
in the ordinary course of its activities.
“GAAP” means generally accepted accounting principles in the United States of America.
“Group” means the Company and its Restricted Subsidiaries.
“Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether state, local or otherwise, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central Bank).
“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the effect of rendering such person liable for any
Indebtedness or other monetary obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation or to purchase (or to advance or supply funds for the purchase of)
any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other monetary obligation of the payment
thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or
other monetary obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or monetary obligation; provided that the term
Guarantee shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guarantee of any guaranteeing person shall be deemed to be the lower of
(a) an amount equal to the stated or determinable amount of the
896290.02-LACSR02A - MSW 36
primary obligation, or portion thereof, in respect of which such Guarantee is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee, unless such primary obligation or the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the
amount of such Guarantee shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Company in good faith.
“Guarantee Agreement” means the Guarantee Agreement, dated as of March 26, 2021, among the Loan Parties party thereto and the Collateral Agent, as amended, restated, amended and
restated, supplemented or otherwise modified from time to time.
“Guarantor” means (a) each Borrower (other than with respect to its own Obligations), (b) each other Restricted Subsidiary of the Company party to the Guarantee Agreement and (c) each other Restricted
Subsidiary that becomes a party to the Guarantee Agreement after the Closing Date pursuant to Section 6 of Amendment No. 1 or Section 5.09(a) or (d).
“Guaranty” means, collectively, the guaranty of the Obligations by the Borrowers and the Guarantors pursuant to the Guarantee Agreement.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances, materials, pollutants or contaminants or wastes of any nature
regulated pursuant to any Environmental Law.
“Hedge Bank” means any Person that is an Administrative Agent or a Lender or an Affiliate of an Administrative Agent or a Lender (x) on the Amendment No. 1 Effective Date or (y) at the
time it enters into a Secured Hedge Agreement, in its capacity as a party thereto.
“Honor Date” has the meaning provided in Section 2.05(c)(i).
“IFRS” means International Financial Reporting Standards as issued by the International Accounting Standards Board.
“Immaterial Subsidiary” has the meaning assigned to such term in the definition of “Excluded Subsidiary”.
“Increased Commitments” has the meaning provided in Section 2.19(a).
“Increasing Lender” has the meaning provided in Section 2.19(b).
“Incremental Substitute Indebtedness” means Indebtedness consisting of (x) unsecured loans or secured loans secured by Liens ranking pari passu with or junior to the Liens securing the
Obligations or (y) unsecured debt securities or secured debt securities secured by Liens ranking pari passu with or junior to the Liens securing the Obligations issued or Guaranteed by the Loan
Parties that is designated by the Company in a certificate of a Responsible Officer of the Company delivered to the Administrative Agents as “Incremental Substitute Indebtedness” prior to the date
of incurrence; provided that (i) such Indebtedness does not have a final maturity that is prior to the Term B Loan Maturity Date or a Weighted Average Life to Maturity that is shorter than the
Weighted Average Life to Maturity of the then outstanding Term Loans of any Class, (ii) such Indebtedness is not secured by a Lien on any assets of the Company or any of its Subsidiaries except
for Liens permitted by Section 6.02(w), (iii) such Indebtedness is not incurred or Guaranteed by any Subsidiaries that are not Loan Parties, (iv) the aggregate principal amount of Incremental
Substitute Indebtedness incurred following the Amendment No. 1 Effective Date, when aggregated with the aggregate amount of all Increased Commitments and Incremental Term Loans (other
than Refinancing Incremental Term Loans) established following the Amendment No. 1 Effective Date shall not exceed the sum of (A) the greater of (i) $380,000,000 and 100% of LTM
Consolidated EBITDA, plus (B) an amount equal to all voluntary prepayments of Loans (including Incremental Term Loans) and Incremental Substitute
896290.02-LACSR02A - MSW 37
Indebtedness (but including purchases of the Loans or Incremental Substitute Indebtedness by the Company or any of its Subsidiaries at or below par, in which case the amount of voluntary
prepayments of such Loans or Incremental Substitute Indebtedness shall be deemed not to exceed the actual purchase price of such Loans or Incremental Substitute Indebtedness below par), in the
case of prepayments of Incremental Term Loans or Incremental Substitute Indebtedness (in each case, other than to the extent funded with proceeds of long-term Indebtedness and excluding
prepayments of the Revolving Facility except to the extent the commitments thereunder are permanently reduced by the amount of such prepayments), plus (C) an unlimited amount so long as, in
the case of this clause (C), (i) with respect to any Incremental Substitute Indebtedness that is secured by Liens ranking pari passu with or junior to the Liens securing the Obligations, on a Pro
Forma Basis the Secured Net Leverage Ratio (excluding the cash proceeds thereof from cash for purposes of such calculation) as of the last day of the most recent fiscal quarter of the Company for
which financial statements have been delivered pursuant to Section 5.01(a) or (b) prior to such time would not exceed 3.00 to 1.00 and (ii) with respect to any Incremental Substitute Indebtedness
that is secured by Liens ranking junior to the Liens securing the Obligations or that is unsecured, on a Pro Forma Basis the Consolidated Net Leverage Ratio (excluding the cash proceeds thereof
from cash for purposes of such calculation) as of the last day of the most recent fiscal quarter of the Company for which financial statements have been delivered pursuant to Section 5.01(a) or (b)
prior to such time would not exceed 3.00 to 1.00, (v) Incremental Substitute Indebtedness incurred on or prior to the twelve-month anniversary of the Amendment No. 1 Effective Date in the form
of term loans that are secured by Liens ranking pari passu with the Liens securing the Obligations shall be subject to the MFN Provision and (vi) the other terms and conditions relating to such debt
securities or loans (other than interest rates, fees, rate floors, premiums, discounts, optional redemption or prepayment provisions, amortization, maturities and call protection) are not in the
aggregate materially more restrictive than the terms of this Agreement as determined in good faith by the Company.
“Incremental Term Loan” has the meaning assigned to such term in Section 2.19(a).
“Indebtedness” means, as to any Person, without duplication, (i) all indebtedness (including principal, interest, fees and charges) of such Person for borrowed money or bonds, debentures,
notes or similar instruments 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), (vii) or (viii) 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 Capital 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 Guarantees by such Person of Indebtedness of others, (vii) all obligations under any Interest Rate Protection Agreement, any Other Hedging Agreement or under any
similar type of agreement and (viii) obligations arising under Synthetic Leases. Notwithstanding the foregoing, Indebtedness shall not include (i) 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 or (ii) intercompany liabilities arising from their cash
management and accounting operations and
896290.02-LACSR02A - MSW 38
intercompany loans, advances or Indebtedness among the Company and its Restricted Subsidiaries or among Restricted Subsidiaries of the Company having a term not exceeding 364 days
(inclusive of any rollover or extensions of terms) and made in the ordinary course of business.
“Indemnified Taxes” means all (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan
Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitee” has the meaning set forth in Section 9.03(b).
“Information” has the meaning specified in Section 9.12.
“Initial Borrowers” has the meaning specified in the preamble hereto.
“Intercreditor Agreements” means each First Lien Intercreditor Agreement and Junior Lien Intercreditor Agreement, in each case to the extent then in effect.
“Interest Election Request” means a request by the applicable Borrower (or the Company on behalf of the applicable Borrower) to convert or continue a Revolving Borrowing in accordance
with Section 2.03.
“Interest Payment Date” means (a) with respect to any Base Rate Loan (including a Swingline Loan), the last Business Day of each March, June, September and December, (b) as to any
SONIA Rate Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a SONIA Rate Borrowing with an Interest Period of more than
three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period, (c) with respect to any
Eurocurrency Loan or Term SOFR Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurocurrency Borrowing or Term SOFR
Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of
such Interest Period and (d) with respect to any Pro Rata Daily Compounded SOFR Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part.
“Interest Period” means (i) with respect to any Eurocurrency Borrowing or RFR Borrowing (other than a Pro Rata Daily Compounded SOFR Borrowing), the period commencing on the date
of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, three or six months, or any other period as may be agreed to and is available to all applicable
Lenders, thereafter, as a Borrower (or the Company on behalf of such Borrower) may elect, and (ii) with respect to a Pro Rata Daily Compounded SOFR Borrowing, an interest period of one month,
or any other period as may be agreed to and is available to all applicable Lenders, which period may not exceed three months, as a Borrower (or the Company on behalf of such Borrower) may
elect; provided that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest Period that commences on the last Business
Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period and (iii) no tenor that has been removed from this definition pursuant to Section 2.13(c)(v) or Section 2.13(d)(ii) shall be available for specification in such Borrowing
Request or Interest Election Request. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and, in the case of a Revolving Borrowing, thereafter
shall be the effective date of the most recent conversion or continuation of such Borrowing.
896290.02-LACSR02A - MSW 39
“Interest Rate Protection Agreement” means any interest rate swap agreement, interest rate cap agreement, interest collar agreement, interest rate hedging agreement, interest rate floor
agreement or other similar agreement or arrangement.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or debt or
other securities of another Person or (b) a loan, advance or capital contribution to, Guarantee of Indebtedness of, assumption of Indebtedness of, or purchase or other acquisition of any other debt or
equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person (other than, in the case of the Company and its Restricted Subsidiaries,
intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms)) or (c) the purchase or other acquisition (in one transaction or
a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person. For
purposes of Section 6.05,(i) the amount of any Investment outstanding at any time shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of
such Investment, but reduced by any dividend, distribution, return of capital or principal repayment received in cash in respect of such investment and (ii) in the event the Company or any
Subsidiary (an “Initial Investing Person”) transfers an amount of cash or other Property (the “Invested Amount”) for purposes of permitting the Company or one or more other Subsidiaries to
ultimately make an Investment of the Invested Amount in the Company, any Subsidiary or any other Person (the Person in which such Investment is ultimately made, the “Subject Person”) through
a series of substantially concurrent intermediate transfers of the Invested Amount to the Company or one or more other Subsidiaries other than the Subject Person (each an “Intermediate Investing
Person”), including through the incurrence or repayment of intercompany Indebtedness, capital contributions or redemptions of Equity Interests, then, for all purposes of Section 6.05, any transfers
of the Invested Amount to Intermediate Investing Persons in connection therewith shall be disregarded and such transaction, taken as a whole, shall be deemed to have been solely an Investment of
the Invested Amount by the Initial Investing Person in the Subject Person and not an Investment in any Intermediate Investing Person.
“IPO” means the initial underwritten public offering of shares in the Company pursuant to an effective registration statement to be filed with the SEC pursuant to the Securities Act (the
“Registration Statement”).
“IPO Transactions” means the consummation of the Share Exchange, the consummation of the Merger, the consummation of the IPO in accordance with the Registration Statement, the
consummation of the Dole Refinancing and the Total Produce Refinancing, the execution, delivery and performance by the Loan Parties of applicable Loan Documents, the Borrowing of the Term
B Loans and the payment of fees, costs and expenses in connection therewith.
“Ireland” means Ireland (exclusive of Northern Ireland).
“Irish Borrower” means a Borrower which is organized or incorporated in Ireland.
“Irish Companies Act” means the Companies Act 2014 of Ireland.
“Irish Loan Party” means a Loan Party incorporated under the laws of Ireland.
“Irish Qualifying Lender” means a Lender which is beneficially entitled to interest payable to it in respect of an advance under any Loan Document and is:
(a) a bank within the meaning of Section 246 TCA which is carrying on a bona fide banking business in Ireland for the purposes of Section 246(3) TCA and whose Lending Office is located
in Ireland;
(b) a body corporate:
896290.02-LACSR02A - MSW 40
(i) which, by virtue of the law of a Qualifying Jurisdiction, is resident in the Qualifying Jurisdiction for the purposes of tax and that jurisdiction imposes a tax that generally applies to interest
receivable in that jurisdiction by bodies corporate from sources outside that jurisdiction;
(ii) which is a US company which is incorporated in the United States and is taxed in the United States on its worldwide income;
(iii) which is a US limited liability company where (I) the ultimate recipients of the interest would themselves be Qualifying Lenders under sub-paragraphs (i), (ii) or (iv) of this paragraph (b) or
paragraph (c); and (II) business is conducted through the US limited liability company for market reasons and not for tax avoidance purposes; or
(iv) where the interest:
(1) is exempted from the charge to Irish income tax under an Irish Treaty in force on the date the interest is paid; or
(2) would be exempted from the charge to Irish income tax if an Irish Treaty which has been signed but is not yet in force had the force of law on the date the interest is paid,
except where, in respect of each of sub-paragraphs (i) to (iv), interest payable to that body corporate in respect of an advance under a Loan Document is paid in connection with a trade or business which is
carried on in Ireland by that body corporate through a branch or agency;
(c) in circumstances only where interest is payable under a Loan Document by a Loan Party which is a qualifying company (within the meaning of Section 110 TCA), a person which, by virtue of the law of a
Qualifying Jurisdiction, is resident in the Qualifying Jurisdiction for the purposes of tax except, in a case where such person is a body corporate, where interest payable to it in respect of an advance under a Loan
Document is paid in connection with a trade or business which is carried on in Ireland by that body corporate through a branch or agency;
(f) a body corporate which advances money in the ordinary course of a trade which includes the lending of money and whose Lending Office is located in Ireland, in whose hands any interest payable in
respect of monies so advanced is taken into account in computing the trading income of such body corporate and such body corporate has complied with the notification requirements under section 246(5) TCA;
(g) a qualifying company (within the meaning of section 110 TCA) whose Lending Office is located in Ireland;
(h) an investment undertaking (within the meaning of section 739B TCA) whose Lending Office is located in Ireland;
(i) an exempt approved scheme (within the meaning of section 774 TCA) whose Lending Office is located in Ireland; or
(j) an Irish Treaty Lender.
“Irish Treaty” has the meaning specified in the definition of “Irish Treaty State”.
“Irish Treaty Lender” means a Lender, other than a Lender falling within paragraph (b) or (c) of the definition of Irish Qualifying Lender, which (a) is treated as resident of an Irish Treaty
State for the purposes of an Irish Treaty; (b) does not carry on a business in Ireland through a permanent establishment with which that Lender’s participation in any Loan is effectively connected;
and (c) meets all other conditions of the Irish Treaty which must be fulfilled for residents of that Irish Treaty State to be paid interest without the deduction of Tax (assuming the completion of any
necessary procedural formalities).
“Irish Treaty State” means a jurisdiction have a double taxation agreement (an “Irish Treaty”) with Ireland that has force of law and makes provision for full exemption from tax imposed by
Ireland on interest.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version
thereof as may be in effect at the time of issuance).
896290.02-LACSR02A - MSW 41
“Issuer Documents” means, with respect to any Letter of Credit, the Letter of Credit Application and any other document, agreement and instrument entered into by the applicable Issuing
Bank and the Company (or any Subsidiary) or in favor of the applicable Issuing Bank and relating to such Letter of Credit.
“Issuing Bank” means each of (i) Rabobank, (ii) solely with respect to the Existing Letters of Credit issued by it, Bank of America, N.A., (iii) solely with respect to the Existing Letters of
Credit issued by it, Deutsche Bank AG, New York Branch and (iv) any other Revolving Lender (subject to such Lender’s consent) designated by the Company and consented to by the applicable
Administrative Agent that becomes an Issuing Bank, in each case in its capacity as an issuer of Letters of Credit hereunder, and any successors in such capacity as provided in Section 9.04. An
Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate. Neither Bank of America, N.A. nor Deutsche Bank AG, New York Branch shall have any obligation to issue or amend any Letters of Credit
(other than their respective Existing Letters of Credit) or to extend the expiry date of any of their respective Existing Letters of Credit, or to renew (or permit the automatic renewal of) or increase
the amount of such Existing Letters of Credit.
“ITA” means the UK Income Tax Act 2007.
“Junior Lien Intercreditor Agreement” means an intercreditor agreement, substantially in the form of Exhibit H (with such changes thereto as are reasonably acceptable to the Collateral
Agent), by and between the Collateral Agent and the collateral agent for one or more classes of Credit Agreement Refinancing Indebtedness or Incremental Substitute Indebtedness that are intended
to be secured by Liens ranking junior to the Liens securing the Obligations.
“knowledge” of any Person, means, except as otherwise set forth in this Agreement, the actual (but not the constructive or imputed) knowledge of such Person without any implication of
verification or investigation concerning such knowledge.
“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or
authorities.
“L/C Advance” means, with respect to each Revolving Lender, such Revolving Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage. All
L/C Advances shall be denominated in the same currency as the Letter of Credit under which the applicable L/C Borrowing occurred.
“L/C Borrowing” means an extension of credit resulting from a L/C Disbursement under any Letter of Credit which has not been reimbursed on the date when made or refinanced as Base
Rate Revolving Borrowing. All L/C Borrowings shall be denominated in the currency in which the related Letter of Credit is denominated.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
“L/C Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of Credit.
“L/C Exposure” means, at any time, the sum of (a) the aggregate Outstanding Amount of all Letters of Credit at such time plus (b) the aggregate Outstanding Amount of all L/C
Disbursements, including Unreimbursed Amounts, that have not yet been reimbursed by or on behalf of the Borrowers at such time. The L/C Exposure of any Revolving Lender at any time shall be
its Applicable Percentage of the total L/C Exposure at such time. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall
be determined in accordance with Section 1.11. For all purposes of this
896290.02-LACSR02A - MSW 42
Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of
Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“L/C Exposure Sublimit” means $75,000,000.
“LCT Election” shall have the meaning provided in Section 1.04(d).
“LCT Test Date” shall have the meaning provided in Section 1.04(d).
“Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall have become a Lender hereunder pursuant to Section 2.19 or pursuant to an Assignment and Assumption
or an Additional Credit Extension Amendment, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context otherwise requires, the
term “Lenders” includes the Swingline Lender and the Issuing Banks.
“Lending Office” means the office or offices notified by a Lender to an Applicable Administrative Agent in writing as the office or offices through which it will perform its obligations under
any Loan Document.
“Letter of Credit” means a Letter of Credit issued pursuant to Section 2.05(a)(i) and each Existing Letter of Credit.
“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the applicable Issuing Bank.
“Letter of Credit Expiration Date” means the day that is five Business Days (or, in the case of a commercial letter of credit, 30 days) prior to the Revolving Credit Maturity Date (or, if such
day is not a Business Day, the next preceding Business Day).
“Lien” means, with respect to any asset, any mortgage, charge in the nature of a security interest, deed of trust, lien, pledge, hypothecation, encumbrance, or security interest in, on or of such
asset (or any capital lease having substantially the same economic effect as any of the foregoing).
“Limited Condition Transaction” means (i) any Permitted Acquisition or similar Investment whose consummation is not conditioned on the availability of, or on obtaining, third party
financing and (ii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness requiring irrevocable notice in advance of such redemption, repurchase,
defeasance, satisfaction and discharge or repayment.
“Loan Documents” means this Agreement, Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4, the Collateral Documents, any Intercreditor Agreement, each
Additional Credit Extension Amendment, any promissory notes executed and delivered pursuant to Section 2.09(f), the Fee Letter and any amendments, restatements, amendments and restatements,
waivers, supplements or other modifications to any of the foregoing.
“Loan Parties” means, collectively, the Borrowers and the Guarantors.
“Loans” means the loans made by the Lenders to any Borrower pursuant to this Agreement.
“LTM Consolidated EBITDA” means, on any date, Consolidated EBITDA of the Company for the most recently ended Test Period (calculated on a Pro Forma Basis) for which financial
statements have been delivered pursuant to Section 5.01(a) or (b) (or, prior to the first date on which financial statements are delivered pursuant to Section 5.01(a) or (b), Consolidated EBITDA of
the Company (calculated on a Pro Forma Basis) for the Test Period ended December 31, 2020).
896290.02-LACSR02A - MSW 43
“Margin Stock” has the meaning assigned to such term in Regulation U.
“Material Adverse Effect” means a material adverse effect on (a) the business, assets, property or financial condition of the Company and its Restricted Subsidiaries taken as a whole, (b) the
validity or enforceability against the Loan Parties of the Loan Documents, taken as a whole, (c) the material rights and remedies of the Administrative Agents or the Lenders under the Loan
Documents, taken as a whole, or (d) the ability of the Loan Parties, taken as a whole, to perform their material payment obligations under the Loan Documents, taken as a whole.
“Material Indebtedness” means Indebtedness (other than the Loans) of any one or more of the Company and its Restricted Subsidiaries in an aggregate principal amount exceeding
$75,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Company or any Restricted Subsidiary in respect of any Swap Agreement at any
time shall be the termination value (giving effect to any netting agreements) that the Company or such Restricted Subsidiary would be required to pay if such Swap Agreement were terminated at
such time.
“Material Real Property” means (i) as of the Amendment No. 1 Effective Date, any real property located in the United States owned by a Loan Party listed on Schedule 3.05 and (ii) at all
times after the Amendment No. 1 Effective Date, any real property located in the United States acquired in fee by any Loan Party with a fair market value as of such date in excess of $20,000,000.
“Material Subsidiary” means any Restricted Subsidiary (or group of Restricted Subsidiaries as to which a specified condition applies) that would be a “significant subsidiary” under Rule 1-
02(w) of Regulation S-X.
“Material Transaction” means any Permitted Acquisition or similar Investment or Disposition, in each case, the aggregate consideration for which exceeds $500,000,000.
“Maximum Rate” has the meaning assigned to such term in Section 9.14.
“Merger” means the merger of Merger Sub with and into Dole US Holdings, with Dole US Holdings surviving the Merger as an indirect wholly-owned Restricted Subsidiary of the
Company, in exchange for the issuance of ordinary shares of the Company and other consideration on the terms and in accordance with the Transaction Agreement.
“Merger Sub” means TP-Dole Merger Sub, LLC, a Delaware limited liability company.
“Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or Deposit Account balances, an amount equal to 103% of the Fronting Exposure of the Issuing
Banks with respect to Letters of Credit issued and outstanding at such time and (b) otherwise, an amount determined by the Pro Rata Administrative Agent and the applicable Issuing Banks in their reasonable
discretion.
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Mortgage” means any mortgage or deed of trust executed by any Loan Party in favor of the Collateral Agent for the benefit of the Secured Parties.
“Mortgage Policies” has the meaning set forth in the definition of “Collateral and Guarantee Requirement.”
“Mortgaged Property” has the meaning set forth in the definition of “Collateral and Guarantee Requirement.”
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net Cash Proceeds” means (a) with respect to any Asset Sale or any Casualty Event, an amount equal to (i) the sum of cash and Cash Equivalents received by the Company or any
Restricted Subsidiary in connection with such Asset Sale or Casualty Event (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a
896290.02-LACSR02A - MSW 44
note receivable or otherwise, but only as and when so received and, with respect to any Casualty Event, any insurance proceeds or condemnation awards in respect of such Casualty Event actually
received by the Company or any Restricted Subsidiary) less (ii) the sum of (A) transaction costs (including, without limitation, any underwriting, brokerage or other customary selling commissions,
legal, advisory and other fees and expenses (including title and recording expenses), associated therewith and sales, VAT and transfer taxes arising therefrom), (B) with respect to any Asset Sale,
payments of unassumed liabilities relating to the assets sold or otherwise disposed of at the time of, or within 90 days after, the date of such Asset Sale, (C) the amount of such gross cash proceeds
required to be used to permanently repay any Indebtedness (other than Indebtedness (I) owed to the Lenders pursuant to this Agreement or (II) which is secured by Liens permitted by Section
6.02(w)) which is secured by the respective assets which were subject to such Asset Sale or Casualty Event and (D) the estimated net marginal increase in income taxes which will be payable by the
Company consolidated group or any Restricted Subsidiary of the Company with respect to the fiscal year in which such Asset Sale or Casualty Event occurs as a result of such Asset Sale or
Casualty Event; and in the event of any such Asset Sale or Casualty Event of assets owned by a non-wholly owned Restricted Subsidiary, the proportionate share thereof attributable to minority
interests (based upon such Persons’ relative holdings of Equity Interests in such Restricted Subsidiary); provided, however, that such cash and Cash Equivalents shall not include any portion thereof
which the Company determines in good faith should be reserved for post-closing adjustments (to the extent the Company delivers to the Administrative Agents a certificate signed by a Responsible
Officer as to such determination), it being understood and agreed that on the day that all such post-closing adjustments have been determined, the amount (if any) by which the reserved amount in
respect of such Asset Sale exceeds the actual post-closing adjustments payable by the Company or any of its Restricted Subsidiaries shall constitute Net Cash Proceeds on such date received by the
Company and/or any of its Restricted Subsidiaries from such Asset Sale, and (b) with respect to the incurrence or issuance of any Indebtedness by the Company or any Restricted Subsidiary, the
excess, if any, of (i) the sum of the cash and Cash Equivalents received in connection with such incurrence or issuance over (ii) all taxes paid or reasonably estimated to be payable, and all fees
(including investment banking fees, attorneys’ fees, accountants’ fees, underwriting fees and discounts), commissions, costs and other out-of-pocket expenses and other customary expenses
incurred, in each case by the Company or such Restricted Subsidiary in connection with such incurrence or issuance.
“Net Income” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Non-Extension Notice Date” has the meaning set forth in Section 2.05(b)(iii).
“Non-U.S. Jurisdiction Deposit” means a deposit or Guarantee incurred in the ordinary course of business and required by any Governmental Authority in a non-U.S. jurisdiction as a
condition of doing business in such jurisdiction.
“Non-U.S. Security Documents” means security documents in favor of the Collateral Agent or any of the Secured Parties, with respect to the assets of or Equity Interests in any Loan Party
which is a not a U.S. Loan Party (other than any Excluded Asset).
“Non-U.S. Subsidiary” means any direct or indirect Restricted Subsidiary that is not organized under the laws of the United States, any state thereof or the District of Columbia.
896290.02-LACSR02A - MSW 45
“Note” means a promissory note made by the applicable Borrower in favor of a Lender evidencing Revolving Loans or Term Loans, as applicable, made by such Lender to such Borrower,
substantially in the form of Exhibit B or Exhibit C, as applicable.
“Obligations” means all indebtedness (including interest and fees accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) and other monetary obligations (x) of any of the Loan Parties to any of the Lenders, their Affiliates and the Administrative Agents, individually or collectively, existing on the Closing
Date or arising thereafter (direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured) arising or incurred under this Agreement or any of the
other Loan Documents or (y) arising under any Secured Hedge Agreement or Cash Management Obligation, in each case, including under any of the Loans made or reimbursement or other monetary obligations
incurred or any of the Letters of Credit or other instruments at any time evidencing any thereof, whether now existing or hereafter arising, whether all such obligations arise or accrue before or after the
commencement of any bankruptcy, insolvency or receivership proceedings (and whether or not such claims, interest, costs, expenses or fees are allowed or allowable in any such proceeding). Notwithstanding the
foregoing, “Obligations” of any Loan Party shall not include any Excluded Swap Obligation of such Loan Party.
“OID” has the meaning assigned in Section 2.19(d).
“Original Currency” has the meaning assigned in Section 2.17(a).
“Other Connection Taxes” means, with respect to any Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Loan
Party under any Loan Document, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising solely
from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other
transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Hedging Agreements” means any foreign exchange contracts, currency swap agreements, commodity agreements or other similar agreements or arrangements designed to protect
against fluctuations of currency values or commodity prices.
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes arising from any payment made hereunder or from the execution,
delivery, performance, registration or enforcement of, the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document, except any such
Taxes that are Other Connection Taxes imposed with respect to an assignment, transfer, novation, sub-participation, alienation or other disposal of any Lender’s rights or obligations under a Loan
Document (other than an assignment made pursuant to Section 2.18(b)).
“Outstanding Amount” means (i) with respect to Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings
and prepayments or repayments of such Loans occurring on such date; (ii) with respect to Swingline Loans on any date, the aggregate outstanding Dollar Equivalent amount thereof after giving
effect to any borrowings and prepayments or repayments of such Swingline Loans occurring on such date; and (iii) with respect to any L/C Exposure on any date, the Dollar Equivalent amount of
the aggregate outstanding amount of such L/C Exposure on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the
L/C Exposure as of such date, including as a result of any reimbursements by the Borrowers of Unreimbursed Amounts.
896290.02-LACSR02A - MSW 46
1. “Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Applicable Administrative
Agent, the applicable Issuing Banks, or the Swingline Lender, as the case may be, in accordance with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in an
Alternative Currency, an overnight rate determined by the Pro Rata Administrative Agent or the applicable Issuing Bank, as the case may be, in accordance with banking industry rules on interbank
compensation.
“Parallel Liability” means a Loan Party’s undertaking pursuant to Section 9.22.
“Participant” has the meaning set forth in Section 9.04(d).
“Participant Register” has the meaning set forth in Section 9.04(d).
“Participating Member State” means each state so described in any EMU Legislation.
“Patriot Act” has the meaning provided in Section 9.13.
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Permitted Acquisition” means (i) the purchase or other acquisition, in one or more series of transactions, of property and assets or businesses of any Person or of assets constituting a
business unit, a line of business or division of such Person, or Equity Interests in a Person that, upon the consummation thereof, will be a Restricted Subsidiary of the Company (including as a result
of a merger or consolidation) or (ii) any Investment in any Restricted Subsidiary (including by a merger or consolidation of existing Subsidiaries), including any Investment in (x) any Restricted
Subsidiary the effect of which is to increase such equity ownership in such Restricted Subsidiary or (y) any joint venture for the purpose of increasing the ownership interest in such joint venture;
provided that the following conditions are satisfied to the extent applicable (in each case subject to Section 1.04(d) hereof):
(a) to the extent required by Section 5.09, each applicable Loan Party and any such newly created or acquired Subsidiary shall have complied with the requirements of Section 5.09, within the times
specified therein;
(b) unless such acquired Persons and their Subsidiaries become Guarantors and pledge their assets as, and to the extent, required by Section 5.09, the aggregate consideration (excluding assets
acquired in exchange for Qualified Equity Interests of the Company and excluding any consideration paid with the proceeds of an issuance of, or capital contribution with respect to, any Qualified Equity Interests of
the Company that was not included in the Available Amount or otherwise used as the basis for any Investment, Restricted Payment or payment in respect of Specified Indebtedness) paid by any Loan Party in respect
of all such Permitted Acquisitions shall not exceed, at the time such Permitted Acquisition is made, the greater of (x) $690,000,000 and (y) 15% of Consolidated Total Assets for the most recently ended Test Period
(calculated on a Pro Forma Basis) for which financial statements have been delivered pursuant to Section 5.01(a) or (b);
(c) the acquired Property, business or Person is in a business permitted under Section 6.12; and
(d) at the time of and immediately after any such purchase or other acquisition (including any Indebtedness to be incurred in connection therewith), no Event of Default shall have occurred and be
continuing.
“Permitted Business” means any business which (i) is the same, similar, ancillary or reasonably related to the business in which the Company or any of its Subsidiaries was engaged
immediately prior to the Amendment No. 1 Effective Date, or (ii) is conducted by any Person 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
896290.02-LACSR02A - MSW 47
such Permitted Acquisition (but, in any event, within one year following such Permitted Acquisition).
“Permitted Encumbrances” means:
(a) Liens for Taxes not then due or if due obligations with respect to such Taxes that are not being contested in compliance with Section 5.04;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlords’, workmen’s, suppliers’ and other like Liens imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than sixty (60) days, or are being contested in compliance with Section 5.04;
(c) (i) Liens, pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations or
employment laws or to secure other public, statutory or regulatory obligations (including to support letters of credit or bank guarantees) and (ii) Liens, pledges or deposits in the ordinary course of business securing
liability for premiums or reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing insurance to the
Company or any Restricted Subsidiary;
(d) Liens or deposits to secure the performance of bids, trade contracts, governmental contracts, tenders, statutory bonds, leases, statutory obligations, surety, stay, customs, appeal and replevin bonds,
performance bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations), in each case in the ordinary course of business;
(e) Liens in respect of judgments, decrees, attachments or awards that do not constitute an Event of Default under clause (k) of Article VII;
(f) easements, restrictions (including zoning restrictions), rights-of-way, covenants, licenses, encroachments, protrusions and similar encumbrances and minor title defects affecting real property
imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially interfere with the ordinary conduct of business of the Company and its Restricted
Subsidiaries, taken as a whole;
(g) any interest or title of a lessor, sublessor, licensor or sublicensor under any lease, sublease, license or sublicense entered into by the Company or any Restricted Subsidiary in the ordinary course of
its business and covering only the assets so leased;
(h) any matters affirmatively insured over or exceptions noted in any Mortgage Policy;
(i) with respect to real property located in Hawaii (i) for which no title report has been delivered to the Collateral Agent prior to the Amendment No. 1 Effective Date, and (ii) which are not governed
by the land court of the State of Hawaii, any and all gaps in the chain of title that would be identified by a search of the public records of the State of Hawaii; and
(j) with respect to real property located in Hawaii for which title reports have been delivered to the Collateral Agent prior to the Amendment No. 1 Effective Date, all matters shown in such title
reports.
“Permitted JV Guarantee Obligations” means any Guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of any joint venture so long as the aggregate principal
amount of Indebtedness Guaranteed by the Company and its Restricted Subsidiaries in reliance on this definition shall not exceed $100,000,000 at any time outstanding.
“Permitted Receivables Facility” means one or more Receivables Facilities that meet the following conditions: (a) all sales of Receivables Related Assets to the Receivables SPE or Receivables
Funder are made at fair market value (as determined by the Company in good faith), (b) the covenants, events of default and other material terms applicable to such financing shall be on market terms (as determined
by the Company in good faith) at the time such financing is entered into and may include Standard Securitization Undertakings and such terms will not be adverse in any material respect to the interests of the
Lenders as determined by the Company in good faith and (c) recourse to the
896290.02-LACSR02A - MSW 48
Restricted Subsidiaries (other than any Receivables SPE) in connection with such financing shall be limited to the extent customary for comparable transactions. The transactions contemplated by (i) the Agreement
for the Sale and Purchase of Receivables (Ireland) (governed by Irish law) between Coöperatieve Rabobank U.A., trading as Rabobank Dublin, Total Produce, Total Produce Ireland Limited,
Allegro Limited and Iverk Produce Limited dated 21 December 2012 as amended and restated on 31 August 2015 and as further amended by an Amendment Agreement dated 28 May 2020, (ii) the
Agreement for the Sale and Purchase of English receivables (UK) (governed by English law) between Coöperatieve Rabobank U.A., trading as Rabobank Dublin, Total Worldfresh Limited and
Total Produce dated 31 August 2015 as amended by an Amendment Agreement dated 29 May 2020, and (iii) the Master Receivables Purchase Deed (Sweden) (governed by Irish law) between
Coöperatieve Rabobank U.A., trading as Rabobank Dublin, Everfresh AB and Total Produce dated 19 December 2019 as amended by an Amendment Agreement dated 29 May 2020, in each case as
amended, restated, amended and restated, extended, supplemented, modified, replaced or refinanced with Rabobank or an Affiliate of Rabobank from time to time, shall be deemed to be Permitted Receivables
Facilities.
“Permitted Receivables Facility Assets” means (i) Receivables (whether now existing or arising in the future) of the Subsidiaries of the Company (other than any Loan Party) which are
transferred or pledged to any Receivables Entity pursuant to any Permitted Receivables Facility and any related Receivables Related Assets which are also so transferred or pledged to any
Receivables Entity and all proceeds thereof and (ii) loans to any Subsidiary of the Company (other than a Loan Party) secured by Receivables (whether now existing or arising in the future) of any
Subsidiary which are made pursuant to any Permitted Receivables Facility.
“Permitted Receivables Facility Documents” means each of the documents and agreements entered into in connection with any Permitted Receivables Facility, including all documents and
agreements relating to the issuance, funding and/or purchase of certificates and purchased interests, or the issuance of notes or other evidence of Indebtedness secured by such notes, all of which
documents and agreements shall be in form and substance reasonably customary for transactions of this type, in each case as such documents and agreements may be amended, restated, amended
and restated, modified, supplemented, refinanced or replaced from time to time so long as (in the good faith determination of the Company) either (i) the terms as so amended, restated, amended and
restated, modified, supplemented, refinanced or replaced are reasonably customary for transactions of this type or (ii)(x) any such amendments, restatements, amendments and restatements,
modifications, supplements, refinancings or replacements do not impose any conditions or requirements on the Company or any of its Restricted Subsidiaries that, taken as a whole, are more
restrictive in any material respect than those in existence immediately prior to any such amendment, restatement, amendment and restatement, modification, supplement, refinancing or replacement
as determined by the Company in good faith and (y) any such amendments, restatements, amendments and restatements, modifications, supplements, refinancings or replacements are not adverse in
any material respect to the interests of the Lenders as determined by the Company in good faith.
“Permitted Refinancing Indebtedness” means, with respect to any Person, any amendment, modification, refinancing, refunding, renewal, replacement or extension of any applicable
Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the
Indebtedness so modified, refinanced, refunded, renewed, replaced or extended except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and
fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal, replacement or extension and by an amount equal to any
896290.02-LACSR02A - MSW 49
existing commitments unutilized thereunder, (b) other than with respect to Permitted Refinancing Indebtedness in respect of Indebtedness permitted pursuant to Section 6.01(b), Section 6.01(e) and
Section 6.01(q), such modification, refinancing, refunding, renewal, replacement or extension has a final maturity date equal to or later than the earlier of (x) the final maturity date of the
Indebtedness so modified, refinanced, refunded, renewed, replaced or extended and (y) the date which is 91 days after the Term B Loan Maturity Date, (c) other than with respect to Permitted
Refinancing Indebtedness in respect of Indebtedness permitted pursuant to Section 6.01(e), such modification, refinancing, refunding, renewal, replacement or extension has a Weighted Average
Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended and (d) to the
extent such Indebtedness being modified, refinanced, refunded, renewed, replaced or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding,
renewal, replacement or extension is subordinated in right of payment to the Obligations on terms, taken as a whole, at least as favorable to the Lenders (in the good faith determination of the
Company) as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and
in respect of which the Company, any Restricted Subsidiary or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as
defined in Section 3(5) of ERISA.
“Pledged Notes” has the meaning set forth in the U.S. Security Agreement and shall include any other Indebtedness pledged by any Loan Party or required to be pledged by any Loan Party and required to
be delivered to the Collateral Agent under any other Collateral Documents.
1. “Pro Forma Basis,” “Pro Forma Compliance,” and “Pro Forma Effect” means, with respect to compliance with any test or covenant or calculation of any ratio hereunder, the determination or calculation
of such test, covenant or ratio (including in connection with Specified Transactions) in accordance with Section 1.13.
“Pro Forma Financial Statements” means the pro forma balance sheet of the Company and its subsidiaries (including the Acquired Business) and a pro forma consolidated statement of
income of the Company for the annual period ended on or about December 31, 2020, prepared after giving effect to the Transactions.
“Pro Rata Adjusted Daily Compounded SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Pro Rata Daily Compounded SOFR for such calculation plus (b) the
Pro Rata Daily Compounded SOFR Adjustment; provided that if Pro Rata Adjusted Daily Compounded SOFR as so determined shall ever be less than the Floor, then Pro Rata Adjusted Daily
Compounded SOFR shall be deemed to be the Floor.
“Pro Rata Adjusted Eurocurrency Rate” means, with respect to any Eurocurrency Borrowing for any Interest Period, the greater of (a) an interest rate per annum equal to (i) the Pro Rata Eurocurrency
Rate for such Interest Period multiplied by (ii) the Statutory Reserve Rate and (b) 0%.
“Pro Rata Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Pro Rata Term SOFR for such calculation plus (b) the Pro Rata Term SOFR
Adjustment; provided that if Pro Rata Adjusted Term SOFR as so determined shall ever be less than the Floor, then Pro Rata Adjusted Term SOFR shall be deemed to be the Floor.
896290.02-LACSR02A - MSW 50
“Pro Rata Administrative Agent” means Coöperatieve Rabobank U.A., New York Branch in its capacity as administrative agent for the Pro Rata Lenders hereunder, or any successor
administrative agent for the Pro Rata Lenders hereunder.
“Pro Rata Administrative Agent’s Office” means, with respect to any currency, the Pro Rata Administrative Agent’s address and, as appropriate, account as set forth on Schedule 9.01 with
respect to such currency, or such other address or account with respect to such currency as the Pro Rata Administrative Agent may from time to time notify to the Borrowers and the applicable
Lenders.
“Pro Rata Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Pro Rata Administrative Agent.
“Pro Rata Arrangers” means Coöperatieve Rabobank U.A., BofA Securities, Inc. and Goldman Sachs Bank USA, in their capacities as joint lead arrangers and joint bookrunners for the Pro
Rata Facilities.
“Pro Rata Available Tenor” means, as of any date of determination and with respect to the then-current Pro Rata Benchmark for any currency, as applicable, if such Pro Rata Benchmark is a
term rate, any tenor for such Pro Rata Benchmark (or component thereof) that is or may be used for determining the length of an Interest Period with respect to a Revolving Loan or Term A Loan
pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Pro Rata Benchmark that is then-removed from the definition of “Interest Period”
pursuant to clause (iv) of Section 2.13(c).
“Pro Rata Base Rate” means, at any time, the greatest of (a) the Pro Rata Prime Rate at such time, (b) 1/2 of 1.00% in excess of the Pro Rata Federal Funds Rate at such time, and (c) Pro Rata Adjusted
Term SOFR for a one-month Interest Period commencing at such time plus 1.00% or (d) Pro Rata Adjusted Daily Compounded SOFR plus 1.00%; provided that in no event shall the Pro Rata Base Rate as so
determined be less than 1.00%. Any change in the Pro Rata Base Rate due to a change in the Pro Rata Prime Rate, the Pro Rata Federal Funds Rate, or such Pro Rata Adjusted Term SOFR or Pro Rata Adjusted Daily
Compounded SOFR shall be effective as of the opening of business on the day of such change in the Pro Rata Prime Rate, the Pro Rata Federal Funds Rate, Pro Rata Adjusted Term SOFR or Pro Rata Adjusted Daily
Compounded SOFR, respectively. If the Pro Rata Base Rate is being used as an alternate rate of interest pursuant to Section 2.13(a) or Section 2.13(b) hereof (for the avoidance of doubt, only until any amendment
has become effective pursuant to Section 2.13(c)), then the Pro Rata Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) or (d) above.
“Pro Rata Base Rate Term SOFR Determination Day” has the meaning specified in the definition of “Pro Rata Term SOFR.”
“Pro Rata Benchmark” means, initially, (i) with respect to any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Dollars, either the Pro Rata Term
SOFR Reference Rate or Pro Rata Daily Compounded SOFR, (ii) with respect to any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Canadian Dollars,
CDOR, (iii) with respect to any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Euros, EURIBOR (iv) with respect to any Obligations, interest, fees,
commissions or other amounts denominated in, or calculated with respect to, Sterling, SONIA and (v) with respect to any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with
respect to, SEK, STIBOR; provided that if a Pro Rata Benchmark Transition Event and its related Pro Rata Benchmark Replacement Date have occurred with respect to the then-current Pro Rata Benchmark for such
currency, then “Pro Rata Benchmark” means, with respect to such Obligations, interest, fees, commissions or other amounts, the applicable Pro Rata Benchmark Replacement to the extent that such Pro Rata
Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (i) of Section 2.13(c).
896290.02-LACSR02A - MSW 51
“Pro Rata Benchmark Replacement” the first alternative set forth in the order below that can be determined by the Pro Rata Administrative Agent for the applicable Pro Rata Benchmark Replacement Date;
provided, that with respect to a Pro Rata Benchmark with respect to any Obligations, interest, fees, commissions or other amounts denominated in any currency other than Dollars or calculated with respect thereto,
the alternative set forth in clause (b) below:
(a) the sum of (i) Pro Rata Daily Simple SOFR and (ii) 0.10% (10 basis points); or
(b) the sum of: (i) the alternate benchmark rate that has been selected by the Pro Rata Administrative Agent and the Company as the replacement for such Pro Rata Benchmark giving due
consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing
market convention for determining a benchmark rate as a replacement for such Pro Rata Benchmark for syndicated credit facilities denominated in the applicable currency at such time and (ii) the related Pro Rata
Benchmark Replacement Adjustment.
If the Pro Rata Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Floor with respect to a Pro Rata Facility for the applicable currency, the Pro Rata Benchmark
Replacement will be deemed to be the Floor applicable to such Pro Rata Benchmark for the purposes of this Agreement and the other Loan Documents. Notwithstanding anything herein to the contrary, the parties
shall make any selection under clause (b) above in a manner that, to the extent administratively feasible and consistent with any evolving or then-prevailing market convention for determining such Pro Rata
Benchmark Replacement that is not materially adverse to the Pro Rata Lenders, gives due consideration to the terms of Proposed United States Treasury Regulations Section 1.1001-6(b).
“Pro Rata Benchmark Replacement Adjustment” means, with respect to any replacement of any then-current Pro Rata Benchmark with a Pro Rata Unadjusted Benchmark Replacement, the spread
adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Pro Rata Administrative Agent and the Company giving
due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Pro Rata Benchmark with the
applicable Pro Rata Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating
or determining such spread adjustment, for the replacement of such Pro Rata Benchmark with the applicable Pro Rata Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the
applicable currency at such time.
“Pro Rata Benchmark Replacement Date” means a date and time determined by the Pro Rata Administrative Agent, which date shall be no later than the earliest to occur of the following events with respect
to any then-current Pro Rata Benchmark for any currency:
(a) in the case of clause (a) or (b) of the definition of “Pro Rata Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii)
the date on which the administrator of such Pro Rata Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide such Pro Rata Benchmark (or such
component thereof) or, if such Pro Rata Benchmark is a term rate, all Pro Rata Available Tenors of such Pro Rata Benchmark (or such component thereof); or
(b) in the case of clause (c) of the definition of “Pro Rata Benchmark Transition Event,” the first date on which such Pro Rata Benchmark (or the published component used in the calculation thereof)
has been or, if such Pro Rata Benchmark is a term rate, all Pro Rata Available Tenors of such Pro Rata Benchmark (or such component thereof) have been determined and announced by the regulatory supervisor for
the administrator of such Pro Rata Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the
896290.02-LACSR02A - MSW 52
most recent statement or publication referenced in such clause (c) and even if such Pro Rata Benchmark (or such component thereof) or, if such Pro Rata Benchmark is a term rate, any Pro Rata Available Tenor of
such Pro Rata Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, if such Pro Rata Benchmark is a term rate, the “Pro Rata Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Pro Rata
Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Pro Rata Available Tenors of such Pro Rata Benchmark (or the published component used in the
calculation thereof).
“Pro Rata Benchmark Transition Event” means, with respect to any then current Pro Rata Benchmark for any currency, the occurrence of one or more of the following events with respect to such Pro Rata
Benchmark:
(a) a public statement or publication of information by or on behalf of the administrator of such Pro Rata Benchmark (or the published component used in the calculation thereof) announcing that such
administrator has ceased or will cease to provide such Pro Rata Benchmark (or such component thereof) or, if such Pro Rata Benchmark is a term rate, all Pro Rata Available Tenors of such Pro Rata Benchmark (or
such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Pro Rata Benchmark (or such
component thereof) or, if such Pro Rata Benchmark is a term rate, any Pro Rata Available Tenor of such Pro Rata Benchmark (or such component thereof);
(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Pro Rata Benchmark (or the published component used in the calculation thereof), the Board of
Governors of the Federal Reserve System, the Federal Reserve Bank of New York, the central bank for the currency applicable to such Pro Rata Benchmark, an insolvency official with jurisdiction over the
administrator for such Pro Rata Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Pro Rata Benchmark (or such component) or a court or an entity with similar
insolvency or resolution authority over the administrator for such Pro Rata Benchmark (or such component), which states that the administrator of such Pro Rata Benchmark (or such component) has ceased or will
cease to provide such Pro Rata Benchmark (or such component thereof) or, if such Pro Rata Benchmark is a term rate, all Pro Rata Available Tenors of such Pro Rata Benchmark (or such component thereof)
permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Pro Rata Benchmark (or such component thereof) or, if
such Pro Rata Benchmark is a term rate, any Pro Rata Available Tenor of such Pro Rata Benchmark (or such component thereof); or
(c) a public statement or publication of information by the regulatory supervisor for the administrator of such Pro Rata Benchmark (or the published component used in the calculation thereof) announcing
that such Pro Rata Benchmark (or such component thereof) or, if such Pro Rata Benchmark is a term rate, all Pro Rata Available Tenors of such Pro Rata Benchmark (or such component thereof) are not, or as of a
specified future date will not be, representative.
For the avoidance of doubt, if such Pro Rata Benchmark is a term rate, a “Pro Rata Benchmark Transition Event” will be deemed to have occurred with respect to any Pro Rata Benchmark if a public
statement or publication of information set forth above has occurred with respect to each then-current Pro Rata Available Tenor of such Pro Rata Benchmark (or the published component used in the calculation
thereof).
“Pro Rata Benchmark Unavailability Period” means, with respect to any then-current Benchmark for any currency, the period (if any) (x) beginning at the time that a Pro Rata Benchmark Replacement
Date with respect to such Pro Rata Benchmark has occurred if, at such time, no Pro Rata Benchmark Replacement has replaced the then-current Pro Rata Benchmark for all purposes hereunder and under any Loan
Document in accordance with Section 2.13(c) and (y) ending at the time that a Pro Rata Benchmark Replacement has replaced such Pro Rata Benchmark for all purposes hereunder and under any Loan Document in
accordance with Section 2.13(c).
896290.02-LACSR02A - MSW 53
“Pro Rata Conforming Changes” means, with respect to either the use or administration of an initial Pro Rata Benchmark or the use, administration, adoption or implementation of any Pro Rata Benchmark
Replacement, any technical, administrative or operational changes (including changes to the definition of “Pro Rata Base Rate” (if applicable), the definition of “Business Day,” the definition of “RFR Business Day,”
the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of
borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.15 and other technical, administrative or operational matters) that
the Pro Rata Administrative Agent reasonably decides, in consultation with the Company, may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration
thereof by the Pro Rata Administrative Agent in a manner substantially consistent with market practice (or, if the Pro Rata Administrative Agent reasonably decides that adoption of any portion of such market
practice is not administratively feasible or if the Pro Rata Administrative Agent reasonably determines that no market practice for the administration of any such rate exists, in such other manner of administration as
the Pro Rata Administrative Agent reasonably decides, in consultation with the Company, is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents with respect
to the Pro Rata Facilities).
“Pro Rata Daily Compounded SOFR” has the meaning specified in Schedule 1.01C.
“Pro Rata Daily Compounded SOFR Adjustment” means a percentage equal to 0.10% per annum.
“Pro Rata Daily Compounded SOFR Borrowing” means, as to any Borrowing, the Loans bearing interest at a rate based on Pro Rata Adjusted Daily Compounded SOFR comprising such Borrowing
other than pursuant to clause (c) of the definition of “Pro Rata Base Rate.”
“Pro Rata Daily Compounded SOFR Loan” means a Loan that bears interest at a rate based on Pro Rata Adjusted Daily Compounded SOFR other than pursuant to clause (c) of the definition of “Pro Rata
Base Rate.”
“Pro Rata Daily Simple SOFR” means, for any day, Pro Rata SOFR, with the conventions for this rate (which will include a lookback) being established by the Pro Rata Administrative Agent in
accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Pro Rata Daily Simple SOFR” for syndicated business loans; provided that if the Pro
Rata Administrative Agent decides that any such convention is not administratively feasible for the Pro Rata Administrative Agent, then the Pro Rata Administrative Agent may establish another convention in its
reasonable discretion.
“Pro Rata Eurocurrency Rate” means, with respect to any Borrowing of Revolving Loans or Term A Loans for any Interest Period,
(a) denominated in Euros, the rate per annum equal to the Euro Interbank Offered Rate (“EURIBOR”), or a comparable or successor rate which rate is approved by the Pro Rata
Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Pro Rata
Administrative Agent from time to time) (in such case, the “EURIBOR Rate”) at or about 11:00 a.m. (Brussels, Belgium time) on the Rate Determination Date with a term equivalent to such
Interest Period;
(b) denominated in Canadian Dollars, the rate per annum equal to the Canadian Dollar Offered Rate (“CDOR”), or a comparable or successor rate which rate is approved by the
Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Pro Rata
Administrative Agent from time to time) (in such case, the “CDOR Rate”) at or about 10:00 a.m. (Toronto, Ontario time) on the Rate Determination Date with a term equivalent to such Interest
Period; and
896290.02-LACSR02A - MSW 54
(c) denominated in SEK, the rate per annum equal to the Stockholm Interbank Offered Rate administered and calculated by the Swedish Financial Benchmark Facility (or any other Person
which takes over the administration of that rate) (“STIBOR”), or a comparable or successor rate which is approved by the Pro Rata Administrative Agent, as published on the applicable Bloomberg
screen page (or such other commercially available source providing such quotations as may be designated by the Pro Rata Administrative Agent from time to time) (in such case, the “STIBOR
Rate”) at or about 11:00 a.m. (Stockholm, Sweden time) on the Rate Determination Date with a term equivalent to such Interest Period;
provided that if the Pro Rata Eurocurrency Rate as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Pro Rata Facilities” means, collectively, the Revolving Facility and the Term A Loan Facility.
“Pro Rata Federal Funds Rate” means, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day for such transactions received by
the Pro Rata Administrative Agent from three federal funds brokers of recognized standing selected by it; provided that in no event shall the Pro Rata Federal Funds Rate be less than zero.
“Pro Rata Lenders” means, collectively, the Revolving Lenders and Term A Lenders.
“Pro Rata Prime Rate” means the rate of interest per annum published in the Wall Street Journal as the U.S. dollar “prime rate” for such day and if the Wall Street Journal does not publish such rate on such
day then such rate as most recently published prior to such day; provided that in no event shall the Pro Rata Prime Rate be less than 1.00%.
“Pro Rata Share” means (i) with respect to any Lender’s obligation to pay any amount to the Pro Rata Administrative Agent, the Swingline Lender or any Issuing Bank in connection with the
Revolving Facility, such Lender’s Applicable Percentage of the Revolving Facility, (ii) with respect to any Lender’s obligation to pay any amount to the Pro Rata Administrative Agent in connection
with the Term Loan A Facility, such Lender’s Applicable Percentage of the Term A Loans and (iii) with respect to any Lender’s obligation to pay any amount to the Term B Administrative Agent,
such Lender’s Applicable Percentage of the Term B Loans.
“Pro Rata SOFR” means a rate equal to the secured overnight financing rate as administered by the Pro Rata SOFR Administrator.
“Pro Rata SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“Pro Rata SOFR Determination Day” has the meaning specified in Schedule 1.01C.
“Pro Rata Term SOFR” means,
(a) for any calculation with respect to a Pro Rata Term SOFR Loan, the Pro Rata Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day,
the “Pro Rata Periodic Term SOFR Determination Day”) that is two (2) RFR Business Days prior to the first day of such Interest Period, as such rate is published by the Pro Rata Term SOFR
Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Pro Rata Periodic Term SOFR Determination Day the Pro Rata Term SOFR Reference Rate for the applicable
tenor has not been published by the Pro Rata Term SOFR Administrator and a Pro Rata Benchmark Replacement Date with respect to the Pro Rata Term SOFR Reference Rate has not occurred,
then Pro Rata Term SOFR will be the Pro Rata Term SOFR Reference Rate for such tenor as published by the Pro Rata Term SOFR Administrator on the first preceding RFR Business Day for
which such Pro Rata Term SOFR Reference Rate for such tenor was published
896290.02-LACSR02A - MSW 55
by the Pro Rata Term SOFR Administrator so long as such first preceding RFR Business Day is not more than three (3) RFR Business Days prior to such Pro Rata Periodic Term SOFR
Determination Day, and
(b) for any calculation with respect to an Pro Rata Base Rate Loan on any day, the Pro Rata Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Pro Rata Base
Rate Term SOFR Determination Day”) that is two (2) RFR Business Days prior to such day, as such rate is published by the Pro Rata Term SOFR Administrator; provided, however, that if as of
5:00 p.m. (New York City time) on any Pro Rata Base Rate Term SOFR Determination Day the Pro Rata Term SOFR Reference Rate for the applicable tenor has not been published by the Pro Rata
Term SOFR Administrator and a Pro Rata Benchmark Replacement Date with respect to the Pro Rata Term SOFR Reference Rate has not occurred, then Pro Rata Term SOFR will be the Pro Rata
Term SOFR Reference Rate for such tenor as published by the Pro Rata Term SOFR Administrator on the first preceding RFR Business Day for which such Pro Rata Term SOFR Reference Rate for
such tenor was published by the Pro Rata Term SOFR Administrator so long as such first preceding RFR Business Day is not more than three (3) RFR Business Days prior to such Pro Rata Base
Rate Term SOFR Determination Day.
“Pro Rata Term SOFR Adjustment” means a percentage equal to 0.10% per annum.
“Pro Rata Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Pro Rata Term SOFR Reference Rate selected by
the Pro Rata Administrative Agent in its reasonable discretion).
“Pro Rata Term SOFR Borrowing” means, as to any Borrowing, the Loans bearing interest at a rate based on Pro Rata Adjusted Term SOFR comprising such Borrowing other than pursuant
to clause (c) or (d) of the definition of “Pro Rata Base Rate.”
“Pro Rata Term SOFR Loan” means a Loan that bears interest at a rate based on Pro Rata Adjusted Term SOFR other than pursuant to clause (c) or (d) of the definition of “Pro Rata Base
Rate.”
“Pro Rata Term SOFR Reference Rate” means the forward-looking term rate based on Pro Rata SOFR.
“Pro Rata Unadjusted Benchmark Replacement” means the applicable Pro Rata Benchmark Replacement with respect to an applicable currency excluding the related Pro Rata Benchmark
Replacement Adjustment with respect to such currency.
“Property” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including, without limitation, Equity
Interests.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Company Costs” means costs relating to compliance with the provisions of the Sarbanes-Oxley Act of 2002, the Securities Act and the Exchange Act, as applicable to companies
with equity or debt securities held by the public, the rules of national securities exchange companies with listed equity or debt securities, directors’ or managers’ compensation, fees and expense
reimbursement, costs relating to investor relations, shareholder meetings and reports to shareholders or debtholders, directors’ and officers’ insurance, employee bonuses and other executive costs,
legal and other professional fees, listing fees and other expenses, in each case, arising out of or incidental to an entity’s status as, or preparation to become, a reporting company.
“Public Lender” has the meaning assigned to such term in Section 5.01(h).
896290.02-LACSR02A - MSW 56
“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security
interests becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder
and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Qualified Equity Interests” means Equity Interests of the Company other than Disqualified Equity Interests.
“Qualifying Bridge Facility” means any bridge facility whereby the Indebtedness outstanding thereunder may be converted, refinanced or exchanged for long-term debt that satisfies clauses (i) and (ii) of
the proviso to the penultimate sentence of Section 2.19(a) and any such conversion or exchange is subject only to customary conditions (determined by the Company in good faith).
“Qualifying Jurisdiction” means (a) a member state of the European Communities other than Ireland; (b) a jurisdiction with which Ireland has entered into an Irish Treaty that has the force of law; or (c) a
jurisdiction with which Ireland has entered into an Irish Treaty where that treaty will (on completion of the necessary procedures) have the force of law.
“Rabobank” means Coöperatieve Rabobank U.A., New York Branch.
1. “Rate Determination Date” means two (2) Business Days prior to the commencement of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such
interbank market, as determined by the Pro Rata Administrative Agent; provided that, to the extent such market practice is not administratively feasible for the Pro Rata Administrative Agent, then “Rate
Determination Date” means such other day as otherwise reasonably determined by the Pro Rata Administrative Agent).
“Ratings Condition” shall be deemed to be satisfied on any date on which the Company’s corporate ratings and corporate family ratings (as applicable) are at least BB- (Stable) from S&P
and at least Ba3 (Stable) from Moody’s.
“Receivables” means all accounts receivable (including, without limitation, all claims and rights to receive payment created by or arising from sales of goods, leases of goods or the rendition
of services rendered no matter how evidenced whether or not earned by performance).
“Receivables Entity” means a direct or indirect Subsidiary of the Company which solely engages in activities in connection with the financing of Receivables of the Receivables Sellers and
which is designated as a “Receivables Entity” by the delivery to the Administrative Agents of an officer’s certificate of the Company certifying that, to such officer’s knowledge and belief after
consultation with counsel, the foregoing conditions are satisfied in respect of such entity:
(a) no portion of the Indebtedness or any other obligations (contingent or otherwise) incurred by such Person (i) is guaranteed by the Company or any other Restricted Subsidiary of the
Company (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness)) pursuant to Standard Securitization Undertakings, (ii) is recourse to or obligates the
Company or any other Restricted Subsidiary of the Company in any way (other than pursuant to Standard Securitization Undertakings) or (iii) subjects any property or asset of the Company or any
other Restricted Subsidiary of the Company, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings;
(b) neither the Company nor any other Restricted Subsidiary of the Company has any contract, agreement, arrangement or understanding (other than pursuant to the Permitted Receivables
Facility (including with respect to fees payable in the ordinary course of business in connection with the servicing of accounts receivable and related assets)) with such person on terms less
favorable to the Company or such Subsidiary than those that might be obtained at the
896290.02-LACSR02A - MSW 57
time from persons that are not Affiliates of the Company (as determined by the Company in good faith); and
(c) neither the Company nor any other Restricted Subsidiary of the Company has any obligation to maintain or preserve such entity’s financial condition or cause such person to achieve
certain levels of operating results.
“Receivables Facility” means any transaction or series of transactions pursuant to which one or more Receivables Sellers may (a) sell, convey, contribute or otherwise transfer Receivables
Related Assets (either directly or indirectly) and/or (b) grant a security interest in respect of or otherwise take the benefit of any Receivables Related Assets, in each case, to one or more Receivables
SPEs or Receivables Funders (and thereby providing financing to the Company and/or any Receivables Seller).
“Receivables Facility Guarantee” means (i) any guarantee of performance and related indemnification entered into by the Company or any Restricted Subsidiary in respect of the obligations
of the Receivables Seller, the Receivables SPE or another Restricted Subsidiary party to any Permitted Receivables Facility or (ii) any other guarantee of performance entered into by the Company
or any Restricted Subsidiary which the Company has determined in good faith to be customary in a Receivables Facility.
“Receivables Funder” means any third-party financial institution which purchases Receivables onto its balance sheet or otherwise make funds available secured by Receivables.
“Receivables Related Assets” means any Receivables and other rights and assets related thereto (including, but not limited to, all collateral securing such receivable, all contracts and all
guarantees or other obligations in respect of such receivable, proceeds collected on such Receivable and other assets which are customarily transferred or in respect of which security interests are
customarily granted in connection with asset based lending, asset backed lending or asset securitization transactions and any related hedging obligations, in each case, whether now existing or
arising in the future).
“Receivables Repurchase Obligation” means any obligation of a Receivables Seller in a Permitted Receivables Facility to repurchase Receivables Related Assets (or make a cash payment in
lieu thereof) arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable or portion thereof becoming subject to any asserted defense,
dispute, off-set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to such Receivables Seller.
“Receivables SPE” means (a) any Receivables Entity, (b) any other Person (i) formed solely for the purposes of engaging in a Permitted Receivables Facility (together with any activities
incidental or related thereto) or (ii) which issues asset-backed commercial paper and uses the proceeds thereof to purchase Receivables and/or Receivables Related Assets or make funds available
secured by Receivables and/or Receivables Related Assets.
“Refinanced Term Loans” has the meaning assigned to such term in Section 9.02.
“Refinancing Amendment” means an amendment to this Agreement executed by each of (a) the Borrowers, (b) the applicable Administrative Agent, (c) each applicable Augmenting
896290.02-LACSR02A - MSW 58
Lender and (d) each existing Lender that agrees to provide any portion of the Credit Agreement Refinancing Indebtedness being incurred pursuant thereto, in accordance with Section 2.23.
“Refinancing Incremental Term Loans” means Incremental Term Loans that are designated by a Responsible Officer of the Company as “Refinancing Incremental Term Loans” in a
certificate of a Responsible Officer of the Company delivered to the Administrative Agents on or prior to the date of incurrence.
“Refinancing Indebtedness” means (i) any Refinancing Incremental Term Loans and (ii) any Credit Agreement Refinancing Indebtedness.
“Refinancing Revolving Commitments” means one or more Classes of Revolving Commitments hereunder that result from a Refinancing Amendment.
“Refinancing Revolving Loans” means one or more Classes of Revolving Loans that result from a Refinancing Amendment.
“Refinancing Term Loan Commitments” means one or more Classes of Term A Loan Commitments and/or Term B Loan Commitments hereunder that result from a Refinancing Amendment.
“Refinancing Term Loans” means one or more Classes of Term Loans that result from a Refinancing Amendment.
“Register” has the meaning set forth in Section 9.04(c).
“Regulated Bank” means (i) an Approved Commercial Bank that is (a) a U.S. depository institution the deposits of which are insured by the Federal Deposit Insurance Corporation, (b) a
corporation organized under section 25A of the U.S. Federal Reserve Act of 1913, (c) a branch, agency or commercial lending company of a foreign bank operating pursuant to approval by and
under the supervision of the Board of Governors under 12 CFR part 211, (d) a non-U.S. branch of a foreign bank managed and controlled by a U.S. branch referred to in clause (c) or (e) any other
U.S. or non-U.S. depository institution or any branch, agency or similar office thereof supervised by a bank regulatory authority in any jurisdiction or (ii) any Affiliate of a Person set forth in clause
(i) above to the extent that (a) all of the Equity Interests of such Affiliate is directly or indirectly owned by either (x) such Person set forth in clause (i) above or (y) a parent entity that also owns,
directly or indirectly, all of the Equity Interests of such Person set forth in clause (i) and (b) such Affiliate is a securities broker or dealer registered with the SEC under Section 15 of the Exchange
Act.
“Regulation S-X” means Regulation S-X under the Securities Act of 1933, as amended.
“Regulation U” means Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees and advisors of such Person and of such
Person’s Affiliates.
“Release” means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the Environment or within,
from or into any building, structure, facility or fixture.
“Relevant Governmental Body” means, (i) with respect to a Pro Rata Benchmark or Pro Rata Benchmark Replacement in respect of Obligations, interest, fees, commissions or other amounts denominated
in, or calculated with respect to, Dollars, the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal
Reserve Bank of New York, (ii) with respect to a Pro Rata Benchmark or Pro Rata Benchmark Replacement in respect of Obligations, interest, fees, commissions or other amounts denominated in, or
calculated with respect to, any Pro Rata Benchmark applicable to any other currency, (a) the central bank for the applicable currency in which such Obligations, interest, fees, commissions or other amounts
are denominated, or calculated with respect to, or any central bank
896290.02-LACSR02A - MSW 59
or other supervisor which is responsible for supervising (1) such Pro Rata Benchmark or Pro Rata Benchmark Replacement for such currency or (2) the administrator of such Pro Rata Benchmark or
Pro Rata Benchmark Replacement for such currency or (b) any working group or committee officially endorsed or convened by: (1) the central bank for such currency in which such Obligations,
interest, fees, commissions or other amounts are denominated, or calculated with respect to, (2) any central bank or other supervisor that is responsible for supervising either (x) such Pro Rata Benchmark
or Pro Rata Benchmark Replacement for such currency or (y) the administrator of such Pro Rata Benchmark or Pro Rata Benchmark Replacement for such currency, or (3) the Financial Stability
Board, or a committee officially endorsed or convened by the Financial Stability Board, or any successor thereto and (iii) with respect to any Term B Benchmark or Term B Benchmark
Replacement, the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the
Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.
“Relevant Required Lenders” has the meaning assigned to such term in Article VIII.
“Replacement Term Loans” has the meaning assigned to such term in Section 9.02.
“Repricing Transaction” means except in connection with a Change of Control, Material Transaction or any other transaction not otherwise permitted by the Loan Document, the prepayment
or refinancing of all or a portion of the Term B Loans with the incurrence by any Loan Party of any long-term, broadly syndicated, pari passu secured term loan “B” debt financing having a Yield
that is less than Yield of the Term B Loans being prepaid or refinanced, including without limitation, as may be effected through any amendment to this Agreement relating to the interest rate for, or
weighted average yield of, the Term B Loans.
“Required Lenders” means, at any time, Lenders having Term Loans, Revolving Credit Exposure and unused Revolving Commitments representing more than 50% of the sum of the total
Term Loans, Revolving Credit Exposure and unused Revolving Commitments at such time; provided that the Revolving Commitment of, and the portion of the Term Loans and Revolving Credit
Exposure held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“Required Pro Rata Lenders” means, at any time, Pro Rata Lenders having more than 50% of (i) (a) the aggregate Revolving Commitments or (b) after the termination or expiration of the
Revolving Commitments, the aggregate Revolving Credit Exposure; provided that the Revolving Commitments and the Revolving Credit Exposure of any Defaulting Lender shall be excluded for
the purposes of making a determination of Required Pro Rata Lenders and (ii) Term A Loans at such time; provided that the Commitment of, and the portion of the Term A Loans held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Pro Rata Lenders.
“Required Revolving Lenders” means, at any time, Lenders having more than 50% of (a) the aggregate Revolving Commitments or (b) after the termination or expiration of the Revolving
Commitments, the aggregate Revolving Credit Exposure; provided that the Revolving Commitments and the Revolving Credit Exposure of any Defaulting Lender shall be excluded for the purposes
of making a determination of Required Revolving Lenders.
“Required Term A Lenders” means, at any time, Lenders having Term A Loans representing more than 50% of the total Term A Loans at such time; provided that the Commitment of, and the
portion of the Term A Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Term A Lenders.
“Required Term B Lenders” means, at any time, Lenders having Term B Loans representing more than 50% of the total Term B Loans at such time; provided that the
896290.02-LACSR02A - MSW 60
Commitment of, and the portion of the Term B Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Term B Lenders.
“Rescindable Amount” has the meaning set forth in Section 2.17(d).
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, president, chief financial officer, finance director, treasurer, a director or any other person with equivalent duties of the Company or,
as applicable, another Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restricted Payments” means any dividend or other distribution (whether in cash, securities or other property (other than Qualified Equity Interests)) with respect to any Equity Interests in
the Company, or any payment (whether in cash, securities or other property (other than Qualified Equity Interests)), including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any such Equity Interests in the Company or any option, warrant or other right to acquire any such Equity Interests in the
Company.
“Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted Subsidiary.
“Returns” has the meaning provided in Section 3.09.
“Revaluation Date” means (a) with respect to any Loan, each of the following: (i) each date of a Borrowing of a Eurocurrency Loan denominated in an Alternative Currency, (ii) each date of
a continuation of a Eurocurrency Loan denominated in an Alternative Currency, and (iii) such additional dates as the Pro Rata Administrative Agent shall determine or the Required Revolving
Lenders shall require; and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (ii) each date of an
amendment of any such Letter of Credit having the effect of increasing the amount thereof, (iii) each date of any payment by an Issuing Bank under any Letter of Credit denominated in an
Alternative Currency and (iv) such additional dates as the Pro Rata Administrative Agent or an Issuing Bank shall determine or the Required Revolving Lenders shall require.
“Revolving Borrowers” means the Initial Borrowers and each Additional Borrower under the Revolving Facility.
“Revolving Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Loans and to acquire participations in Letters of Credit and
Swingline Loans hereunder, expressed as an amount representing the maximum possible aggregate amount of such Lender’s Revolving Credit Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.08, (b) increased from time to time pursuant to Section 2.19, (c) refinanced pursuant to Section 2.23, (d) extended pursuant to Section 2.20 and (e)
reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The amount of each Lender’s Revolving Commitment as of the Amendment No. 1
Effective Date is set forth on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Revolving Commitment, as applicable. The initial aggregate
amount of the Lenders’ Revolving Commitments was $500,000,000 as of the Closing Date and $600,000,000 as of the Amendment No. 1 Effective Date.
896290.02-LACSR02A - MSW 61
“Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of such Lender’s outstanding Revolving Loans and its L/C Exposure and Swingline Exposure at such
time.
“Revolving Credit Maturity Date” means August 3, 2026. Notwithstanding the foregoing, the Revolving Credit Maturity Date of any Refinancing Revolving Commitments or Extended
Revolving Commitments shall be the date specified in the relevant Additional Credit Extension Amendment or Refinancing Amendment, as applicable.
“Revolving Facility” means the Revolving Commitments and the extensions of credit made thereunder.
“Revolving Lender” means each Lender that has a Revolving Commitment or that holds Revolving Credit Exposure.
“Revolving Loan” means a Loan made pursuant to Section 2.01(b), any Loan made pursuant to any Extended Revolving Commitment and any Refinancing Revolving Loan.
“RFR Borrowing” means, as to any Borrowing, the RFR Loans comprising such Borrowing.
“RFR Business Day” means, for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, (a) Dollars, any day except for (i) a Saturday,
(ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for
purposes of trading in United States government securities, and (b) Sterling, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed for general business in London;
provided, that for purposes of notice requirements in Sections 2.03 and 2.10, in each case, such day is also a Business Day.
“RFR Loan” means a SONIA Loan, a Term SOFR Loan or a Pro Rata Daily Compounded SOFR Loan, as the context may require.
896290.02-LACSR02A - MSW 62
Management Banks providing Cash Management Obligations, any Affiliate of a Lender to which Obligations are owed and each co-agent or sub-agent appointed by any applicable Administrative
Agent or any Collateral Agent from time to time pursuant to Article VIII.
“SEK” means the freely transferable lawful money of Sweden.
“Senior Secured Net Leverage Ratio” means, for any Test Period, the ratio of (a) Consolidated Total Net Indebtedness as of the last day of such Test Period (but excluding for this purpose
any Indebtedness that is not secured by any assets of the Company or any Restricted Subsidiary) to (b) Consolidated EBITDA for such Test Period.
“series” means, with respect to any Extended Term Loans, Incremental Term Loans or Replacement Term Loans, all such Term Loans that have the same maturity date, amortization and
interest rate provision and that are designated as part of such “series” pursuant to the applicable Additional Credit Extension Amendment.
“Share Exchange” means the acquisition by the Company of 100% of the issued share capital of Total Produce in exchange for the issuance of ordinary shares in the Company to Total Produce’s existing
shareholders on the terms of and in accordance with the Transaction Agreement.
“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.
“Solvency Certificate” means a certificate signed by a Financial Officer of the Company in the form of Exhibit L.
“SONIA” means the Sterling Overnight Index Average Reference Rate as published on the applicable Bloomberg screen page (or such other commercially available source providing such
quotations as may be designated by the Administrative Agent from time to time) for the SONIA Determination Date with respect to such day.
“SONIA Adjustment” means, (i) with respect to SONIA Rate Loans with an Interest Period of one month, 0.0326% per annum, (ii) with respect to SONIA Rate Loans with an Interest Period
of three months, 0.1193% per annum, and (iii) with respect to SONIA Rate Loans with an Interest Period of six months, 0.2766% per annum.
“SONIA Determination Date” means, with respect to any date of determination of SONIA, the date that is five Business Days prior to such date (or, if such day is not a Business Day, on the
first Business Day immediately prior thereto).
“SONIA Rate” means the rate per annum equal to SONIA determined pursuant to the definition thereof plus the SONIA Adjustment; provided that if the SONIA Rate shall be less than zero,
such rate shall be deemed to be zero for purposes of this Agreement.
“SONIA Rate Loan” means a Revolving Loan that bears interest at a rate based on the SONIA Rate. SONIA Rate Loans shall only be denominated in Sterling.
“Special Notice Currency” means at any time an Alternative Currency, other than the currency of a country that is a member of the Organization for Economic Cooperation and Development
at such time located in North America or Europe.
896290.02-LACSR02A - MSW 63
“specified currency” has the meaning assigned in Section 2.21.
“Specified Indebtedness” means (i) (x) any Indebtedness of the Company or any of its Restricted Subsidiaries that is expressly subordinated in right of payment to Indebtedness under this
Agreement and (y) any unsecured Indebtedness of the Company or any of its Restricted Subsidiaries for borrowed money or bonds, debentures, notes or similar instruments, in each case other than
any intercompany Indebtedness or any Indebtedness with an aggregate principal amount outstanding (on an individual basis) not exceeding $25,000,000 and (ii) any Permitted Refinancing
Indebtedness in respect of any of the foregoing, in each case other than any intercompany Indebtedness or any Indebtedness with an aggregate principal outstanding (on an individual basis) not
exceeding $25,000,000.
“Specified Representations” means the representations and warranties of the Borrowers and the Guarantors (after giving effect to the Transactions) set forth in the first sentence of Section
3.01 (solely with respect to the Loan Parties), Section 3.02, clause (iv) of the last sentence of Section 3.03, Section 3.08, Section 3.10 (if in connection with an LCT Election, after giving effect to
such Limited Condition Transaction), Section 3.15, Section 3.16 (solely that the use of proceeds of the Loans on the Amendment No. 1 Effective Date will not violate the Patriot Act), Section 3.17
(solely that the use of proceeds of the Loans on the Amendment No. 1 Effective Date will not violate Sanctions) and Section 3.18 (solely that the use of proceeds of the Loans on the Amendment
No. 1 Effective Date will not violate FCPA).
“Specified Transaction Agreement Representations” means the representations made by (or relating to) the Acquired Business in the Transaction Agreement as are material to the interests of
the Lenders, but only to the extent that the Company has (or its Affiliate has) the right (determined without regard to any notice requirement) to terminate its (or its Affiliate’s) obligations (or to
refuse to consummate the Merger) under the Transaction Agreement as a result of a breach of such representations.
“Specified Transaction” means, with respect to any period, (i) any Investment that results in a Person becoming a Restricted Subsidiary, (ii) any designation of a Subsidiary as a Restricted
Subsidiary or an Unrestricted Subsidiary, (iii) any Permitted Acquisition, (iv) any disposition that results in a Restricted Subsidiary ceasing to be a Subsidiary, (v) any Investment in, acquisition of or
disposition of assets constituting a business unit, line of business or division of, or all or substantially all of the assets of, another Person, (vi) any Restricted Payment, (vii) any borrowing of any
Incremental Term Loan or establishment of any increase in Revolving Commitments, (viii) any purchases and dispositions of intellectual property if the Company elects to give Pro Forma Effect to
any such purchase or disposition in its discretion on a case-by-case basis, (ix) the IPO Transactions or (x) any other event that by the terms of this Agreement requires Pro Forma Compliance with a
test or covenant hereunder or requires such test or covenant to be calculated on a Pro Forma Basis or giving Pro Forma Effect to any such transaction or event.
“Spot Rate” for a currency means the rate determined by the Pro Rata Administrative Agent or the applicable Issuing Bank, as applicable, to be the rate quoted by the Person acting in such
capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two
Business Days prior to the date as of which the foreign exchange computation is made; provided that the Pro Rata Administrative Agent or the applicable Issuing Bank may obtain such spot rate
from another financial institution designated by the Pro Rata Administrative Agent or the applicable Issuing Bank if the Person acting in such capacity does not have as of the date of determination a
spot buying rate for any such currency; and provided further that any Issuing
896290.02-LACSR02A - MSW 64
Bank may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Alternative Currency.
“Standard Securitization Undertakings” means (i) any Receivables Repurchase Obligation, (ii) any Receivables Facility Guarantee and/or (iii) any representations, warranties, covenants and indemnities
entered into by the Company or any Subsidiary thereof which the Company has determined acting in good faith to be reasonably customary in a Receivables Facility including those relating to the servicing of the
assets of a Receivables SPE.
“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board and any other banking authority, domestic or foreign, to which the Pro Rata
Administrative Agent or any Lender (including any branch, Affiliate or other fronting office making or holding a Loan) is subject for eurocurrency funding (currently referred to as “Eurocurrency liabilities” in
Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D. Eurocurrency Loans shall be deemed to constitute eurocurrency funding and to be subject to such
reserve requirements without benefit of or credit for proration, exemptions, or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Sterling” and “£” mean the lawful currency of the United Kingdom. “subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company,
partnership, association or other entity of which securities or other ownership interests representing more than 50% of the ordinary voting power for the election of directors or other governing body
are at the time beneficially owned, directly or indirectly, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
“Subsidiary” means any subsidiary of the Company and any other Person construed as a subsidiary and consolidated with the Company under GAAP (unless otherwise specified).
“Swap Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more
rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction
or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers,
employees or consultants of the Company or the Restricted Subsidiaries shall be a Swap Agreement.
“Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of
section 1a(47) of the Commodity Exchange Act.
“Swedish Companies Act” means the Swedish act on limited liability companies from 2005 (Sw. Aktiebolagslagen (2005:551)) (as amended).
“Swedish Loan Party” means each Loan Party incorporated and registered under the laws of Sweden.
“Swingline Exposure” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Revolving Lender at any time
shall be its Applicable Percentage of the total Swingline Exposure at such time.
“Swingline Lender” means Rabobank, in its capacity as lender of Swingline Loans hereunder, or any successor swingline lender hereunder.
“Swingline Loan” means a Loan made pursuant to Section 2.04.
896290.02-LACSR02A - MSW 65
“Swingline Loan Notice” means a notice of a Swingline Loan Borrowing pursuant to Section 2.04, which if in writing, shall be substantially in the form of Exhibit F.
“Swingline Loan Sublimit” means $40,000,000.
“Synthetic Lease” means a lease transaction under which the parties intend that (i) the lease will be treated as an “operating lease” by the lessee and (ii) the lessee will be entitled to various
tax and other benefits ordinarily available to owners (as opposed to lessees) of like property.
“TARGET Day” means any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be
operative, such other payment system (if any) determined by the Pro Rata Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by applicable Law or any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto.
“TCA” means the Taxes Consolidation Act 1997 of Ireland (as amended).
“Term A Lender” means a Lender with a Term A Loan Commitment or holding Term A Loans.
“Term A Loan” means a loan made pursuant to Section 2.01(c).
“Term A Loan Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make a Term A Loan pursuant to Section 2.01(c), as such commitment may be
(a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of
each Lender’s Term A Loan Commitment on the Amendment No. 1 Effective Date is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender shall have
assumed a Term A Loan Commitment, as applicable. The initial aggregate amount of the Lenders’ Term A Loan Commitments is $300,000,000.
“Term A Loan Facility” means the Term A Loan Commitments and the Term A Loans made thereunder.
“Term A Loan Maturity Date” means August 3, 2026.
“Term A Borrowers” means, collectively, Finco and TP US Holdings.
“Term B Administrative Agent” means Bank of America, N.A., in its capacity as administrative agent for the Term B Lenders hereunder, or any successor administrative agent.
“Term B Administrative Agent’s Office” means the Term B Administrative Agent’s address and, as appropriate, account as set forth on Schedule 9.01 with respect to such currency, or such
other address or account with respect to such currency as the Term B Administrative Agent may from time to time notify to the Borrowers and the Term Lenders.
“Term B Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Term B Administrative Agent.
“Term B Arrangers” means BofA Securities, Inc., Coöperatieve Rabobank U.A. and Goldman Sachs Bank USA, in their capacities as joint lead arrangers and joint bookrunners for the Term B Loans.
“Term B Available Tenor” means, as of any date of determination and with respect to the then-current Term B Benchmark, as applicable, (x) if the then-current Term B Benchmark is a term rate, any tenor
for such Term B Benchmark that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable,
pursuant to this Agreement as of such date.
1. “Term B Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Term B Federal Funds Rate plus 1/2 of 1% (b) the rate of interest in effect for
896290.02-LACSR02A - MSW 66
such day as publicly announced from time to time by Bank of America as its “prime rate”, and (c) the Term B Term SOFR plus 1.00%; provided that if the Term B Base Rate as so
determined would be less than 1.00%, such rate shall be deemed to be 1.00% for purposes of this Agreement. The “prime rate” is a rate set by Bank of America based upon various factors
including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above,
or below such announced rate. Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of
such change. If the Term B Base Rate is being used as an alternate rate of interest pursuant to Section 2.13(d) hereof, then the Term B Base Rate shall be the greater of clauses (a) and (b)
above and shall be determined without reference to clause (c) above.
2. “Term B Benchmark” means, initially, Term B Term SOFR; provided that if a replacement of the Term B Benchmark has occurred pursuant to Section 2.13(d) then “Term B Benchmark”
means the applicable Term B Benchmark Replacement to the extent that such Term B Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Term B
Benchmark” shall include, as applicable, the published component used in the calculation thereof.
“Term B Benchmark Replacement” means:
a. For purposes of Section 2.13(d)(i), the sum of: (i) Term B Daily Simple SOFR and (ii) 0.26161% (26.161 basis points); and
(2) For purposes of Section 2.13(d)(ii), the sum of (a) the alternate benchmark rate and (b) an adjustment (which may be a positive or negative value or zero), in each case, that has been
selected by the Term B Administrative Agent and the Company as the replacement Term B Benchmark giving due consideration to any evolving or then-prevailing market convention, including any
applicable recommendations made by a Relevant Governmental Body, for U.S. dollar-denominated syndicated credit facilities at such time;
1. provided that, if the Term B Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than 0.00%, the Term B Benchmark Replacement will be deemed to be
0.00% for the purposes of this Agreement and the other Loan Documents.
Any Term B Benchmark Replacement shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the
Term B Administrative Agent, such Term B Benchmark Replacement shall be applied in a manner as otherwise reasonably determined by the Term B Administrative Agent.
“Term B Benchmark Transition Event” means, with respect to any then-current Term B Benchmark other than Term B Term SOFR, the occurrence of a public statement or publication of information by or
on behalf of the administrator of the then-current Term B Benchmark or a Governmental Authority with jurisdiction over such administrator announcing or stating that all Term B Available Tenors are or will no
longer be representative, or made available, or used for determining the interest rate of loans, or shall or will otherwise cease, provided that, at the time of such statement or publication, there is no successor
administrator that is satisfactory to the Term B Administrative Agent, that will continue to provide any representative tenors of such Term B Benchmark after such specific date.
1. “Term B Borrower” means TP US Holdings.
“Term B Conforming Changes” means, with respect to the use, administration of or any conventions associated with Term B SOFR or any proposed Term B Successor Rate or Term B Term SOFR, as
applicable, any conforming changes to the definitions of “Term B Base Rate”, “Term B
896290.02-LACSR02A - MSW 67
SOFR”, “Term B Term SOFR” and “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the
avoidance of doubt, the definitions of “Business Day” and “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback
periods) as may be appropriate, in the reasonable discretion of the Term B Administrative Agent, in consultation with the Company, to reflect the adoption and implementation of such applicable rate(s) and to permit
the administration thereof by the Term B Administrative Agent in a manner substantially consistent with market practice (or, if the Term B Administrative Agent determines that adoption of any portion of such
market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as the Term B Administrative Agent determines, in
consultation with the Company, is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).
1. “Term B Daily Simple SOFR” with respect to any applicable determination date means the secured overnight financing rate (“Term B SOFR”) published on such date by the Federal Reserve
Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source).
2. “Term B Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository
institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business
Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than zero, such rate shall be deemed
to be zero for purposes of this Agreement.
3. “Term B Lender” means a Lender with a Term B Loan Commitment or holding Term B Loans.
4. “Term B Loan” means a loan made pursuant to Section 2.01(a).
5. “Term B Loan Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make a Term B Loan pursuant to Section 2.01(a), as such commitment may be
(a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial
amount of each Lender’s Term B Loan Commitment is set forth in Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender shall have assumed a Term B Loan
Commitment, as applicable. The initial aggregate amount of the Lenders’ Term B Loan Commitments is $540,000,000.
6. “Term B Loan Facility” means the Term B Loan Commitments and the Term B Loans made thereunder.
7. “Term B Loan Maturity Date” means August 3, 2028.
“Term B SOFR” has the meaning assigned to such term in the definition of “Term B Daily Simple SOFR.”
1. “Term B SOFR Adjustment” with respect to Term B Term SOFR means 0.11448% (11.448 basis points) for an Interest Period of one-month’s duration, 0.26161% (26.161 basis points) for an
Interest Period of three-month’s duration, and 0.42826% (42.826 basis points) for an Interest Period of six-months’ duration, and 0.71513% (71.513 basis points) for an Interest Period of
twelve–months’ duration.
2. “Term B Successor Rate” has the meaning assigned in Section 2.13(d)(ii).
3. “Term B Term SOFR” means:
896290.02-LACSR02A - MSW 68
4. (a) for any Interest Period with respect to a Term B Term SOFR Loan, the rate per annum equal to the Term B Term SOFR Screen Rate two U.S. Government Securities Business Days prior
to the commencement of such Interest Period with a term equivalent to such Interest Period; provided that if the rate is not published prior to 11:00 a.m. on such determination date then Term
B Term SOFR means the Term B Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto, in each case, plus the Term B SOFR Adjustment
for such Interest Period; and
5. (b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the Term B Term SOFR Screen Rate two U.S. Government Securities Business Days
prior to such date with a term of one month commencing that day; provided that if the rate is not published prior to 11:00 a.m. on such determination date then Term B Term SOFR means the
Term B Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto, in each case, plus the Term B SOFR Adjustment for such term;
6. provided that if the Term B Term SOFR determined in accordance with either of the foregoing provisions (a) or (b) of this definition would otherwise be less than zero, the Term B Term
SOFR shall be deemed zero for purposes of this Agreement.
7. “Term B Term SOFR Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of Term B Term SOFR.
8. “Term B Term SOFR Screen Rate” means the forward-looking Term B SOFR term rate administered by CME (or any successor administrator satisfactory to the Term B Administrative
Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Term B Administrative
Agent from time to time).
9. “Term Lender” means a Term A Lender, a Term B Lender or a Lender holding Incremental Term Loans, Refinancing Term Loans or Extended Term Loans of any series.
10. “Term Loans” means the Term A Loans, the Term B Loans, the Incremental Term Loans of each series, Refinancing Term Loans and the Extended Term Loans of each series, collectively.
11. “Term SOFR Borrowing” means a Borrowing of Pro Rata Term SOFR Loans or Term B Term SOFR Loans, as the context may require.
12. “Term SOFR Loan” means a Pro Rata Term SOFR Loan or a Term B Term SOFR Loan, as the context may require.
“Test Period” means the period of four fiscal quarters of the Company ending on a specified date.
“Total Produce” has the meaning set forth in the preamble hereto.
“Total Produce Historical Financials” means (1) the audited consolidated group balance sheet and related group income statement and group statement of cash flows of Total Produce for the
fiscal year of Total Produce ended December 31, 2020 and (2) unaudited condensed group balance sheet and related condensed group income statement and condensed group statement of cash
flows of Total Produce for the half-year period of Total Produce ended June 30, 2020.
“Total Produce Note Purchase Agreements” means (1) the Amended and Restated Multi-Currency Note Facility Agreement, dated as of January 17, 2018, among TP US Holdings, TP UK,
Nordic Fruit, TP C Holdings, TP International, Total Produce, the other parties party thereto from time to time and Metropolitan Life Insurance Company, and (2) the Amended and Restated
896290.02-LACSR02A - MSW 69
Multi-Currency Note Facility Agreement, dated as of February 12, 2016, among TP International, TP UK, Nordic Fruit, TP C Holdings, TP US Holdings, Total Produce, the other parties party
thereto from time to time, and PGIM, Inc., in each case as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Total Produce Refinancing” the refinancing, repayment, satisfaction, discharge or redemption in full (including, without limitation, by depositing the required funds with the applicable
trustee with respect to a redemption for which a notice has been issued) of outstanding Indebtedness under each of the Existing Total Produce RCFs.
“Total Produce Transactions” means the execution, delivery and performance by the Loan Parties of this Agreement and the other Loan Documents, the consummation of the Total Produce
Refinancing, if any, and the payment of fees, costs and expenses in connection therewith.
“Transaction Agreement” means the Transaction Agreement, dated as of February 16, 2021, among Total Produce, TP US Holdings, the Company, Merger Sub, Dole US Holdings and the
other parties thereto.
“Transaction Expenses” means all fees and expenses payable by the Company or any of its Subsidiaries in connection with the Transactions.
“Transactions” means the Total Produce Transactions and the IPO Transactions.
“Type,” when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Pro Rata Eurocurrency Rate, SONIA Rate, Pro Rata Adjusted Term SOFR, Pro Rata Adjusted Daily Compounded SOFR or the Base Rate.
“UK Borrower” means a Borrower which is organized or incorporated in the United Kingdom.
“UK Borrower DTTP Filing” means an HM Revenue & Customs Form DTTP2 duly completed and filed by a UK Borrower, which: (a) where it relates to a UK Treaty Lender which is a
party on the date of this Agreement, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender’s name in Schedule 2.16(h), and (i) where the UK Borrower
is a UK Borrower on the date of this Agreement, is filed with HM Revenue & Customs at least 30 days before the first interest payment date in respect of any Loan of the date of this Agreement, or
(ii) where the UK Borrower becomes a UK Borrower after the date of this Agreement, is filed with HM Revenue & Customs within 30 days of that date; or (b) where it relates to a UK Treaty
Lender which becomes a party after the date of this Agreement, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the Assignment and
Assumption pursuant to which it becomes a party, and (i) where the UK Borrower is a UK Borrower on the date on which that UK Treaty Lender becomes a party as Lender in respect of a UK
Loan, is filed with HM Revenue & Customs within 30 days of that date, or (ii) where the UK Borrower becomes a UK Borrower after the date on which that UK Treaty Lender became a party as
Lender in respect of a UK Loan, is filed with HM Revenue & Customs within 30 days of the date on which that UK Borrower becomes a UK Borrower.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation
Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions
and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Loan” means any Loan to a UK Borrower.
896290.02-LACSR02A - MSW 70
“UK Non-Bank Lender” means (a) a Lender which is a Lender on the date of this Agreement or the Amendment No. 1 Effective Date listed in Schedule 2.16(h), or (b) a Lender which
becomes a party hereto after the date of this Agreement and which gives a UK Tax Confirmation in the Assignment and Assumption pursuant to which it becomes a party.
“UK Qualifying Lender” means, with respect to a UK Borrower, a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a UK Loan and is: (A) a Lender: (1)
which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a UK Loan and is within the charge to United Kingdom corporation tax as respects any payments of interest made in
respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or (2) in respect of an advance made under a UK Loan by a person that was a bank (as defined
for the purpose of section 879 of the ITA) at the time that that advance was made and is either within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that
advance or is a bank (as defined for the purpose of section 879 of the ITA) that would be within the charge to corporation tax as respects such payments of interest apart from section 18A of the CTA; or (B) a Lender
which is: (1) a company resident in the United Kingdom for United Kingdom tax purposes; (2) a partnership each member of which is: (a) a company so resident in the United Kingdom; or (b) a company not so
resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section
19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or (3) a company not so resident in the United Kingdom which carries on a trade in
the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of
that company; or (C) a UK Treaty Lender.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“UK Tax Confirmation” means a confirmation by a Lender that the Person beneficially entitled to interest payable to that Lender in respect of an advance under a Loan is either: (i) a
company resident in the United Kingdom for United Kingdom tax purposes; (ii) a partnership each member of which is: (A) a company so resident in the United Kingdom; or (B) a company not so
resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the
meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or (ii) a company not so resident in the United
Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable
profits (within the meaning of section 19 of the CTA) of that company.
“UK Tax Deduction” means a deduction or withholding required by any law of the United Kingdom for or on account of Tax from a payment under a Loan to a UK Borrower but excluding
any such deduction or withholding pursuant to FATCA.
“UK Treaty Lender” means a Lender which: (a) is treated as a resident of a UK Treaty State for the purposes of the UK Treaty; (b) does not carry on a business in the United Kingdom
through a permanent establishment with which that Lender’s participation in the Loan is effectively connected; and (c) meets all other considerations in the UK Treaty for full exemption from Tax
imposed by the United Kingdom on interest, except that for this purpose it shall be assumed that any necessary procedural formalities are satisfied.
“UK Treaty State” means a jurisdiction having a double taxation agreement (a “UK Treaty”) with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom
on interest.
896290.02-LACSR02A - MSW 71
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York.
“United States Tax Compliance Certificate” has the meaning set forth in Section 2.16(f)(ii)(C).
“Unreimbursed Amount” has the meaning set forth in Section 2.05(c)(i).
“Unrestricted Subsidiary” means any Subsidiary of the Company designated by the Company as an Unrestricted Subsidiary pursuant to Section 5.12 subsequent to the Closing Date and any
Subsidiary of an Unrestricted Subsidiary.
“U.S. Borrower” means any Borrower that is a U.S. Person.
“U.S. Government Securities Business Day” means any Business Day, except any Business Day on which any of the Securities Industry and Financial Markets Association, the New York
Stock Exchange or the Federal Reserve Bank of New York is not open for business because such day is a legal holiday under the federal laws of the United States or the laws of the State of New
York, as applicable.
“U.S. Loan Party” means a Loan Party that is organized under the laws of the United States, any state thereof or the District of Columbia.
“U.S. Person” means a “United States person” as defined in Section 7701(a)(30) of the Code.
“U.S. Security Agreement” mean the Security Agreement, dated as of March 26, 2021, executed by TP US Holdings, Calanthe Limited, TP International Holdings, TP International and any other Loan
Party party thereto from time to time, substantially in the form of Exhibit D, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“U.S. Subsidiary” means a Restricted Subsidiary organized under the laws of the United States of America, any state thereof or the District of Columbia.
“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 scheduled 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.
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E
of Title IV of ERISA.
“wholly owned” means, with respect to a Subsidiary of a Person, all of the outstanding Equity Interests of which (other than (x) director’s qualifying shares and (y) shares issued to foreign
nationals to the extent required by applicable Law) are owned by such Person and/or by one or more wholly owned Subsidiaries of such Person.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time
under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the
United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any
contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract
or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or
ancillary to any of those powers.
896290.02-LACSR02A - MSW 72
“Yield” for any Indebtedness on any date of determination will be the internal rate of return on such Indebtedness determined by the Applicable Administrative Agent utilizing (a) the greater
of (i) if applicable, any “SOFR floor” on such date and (ii) the forward SOFR curve (calculated on a quarterly basis) as calculated by the Applicable Administrative Agent in accordance with its
customary practice during the period from such date to the final maturity date of such Indebtedness; (b) the applicable margin for such Indebtedness on such date; and (c) the issue price of such
Indebtedness (after giving effect to any original issue discount or upfront fees paid to the market in respect of such Indebtedness (converted to interest margin based on an assumed four year
weighted average life) but excluding customary arranger, underwriting, structuring, syndication or other fees not paid to the lenders providing such Indebtedness generally).
a. Classification of Loans and Borrowings
. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Term B Loan”) or by Type (e.g., a “Eurocurrency Loan”) or by Class and Type (e.g., a
“Eurocurrency Term B Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Term B Loan Borrowing”) or by Type (e.g., a “Eurocurrency Borrowing”) or by Class and Type
(e.g., a “Eurocurrency Term B Loan Borrowing”).
a. Terms Generally
. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to
have the same meaning and effect as the word “shall.” Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from time to time amended, supplemented, refinanced, restated, replaced or otherwise modified (subject to any restrictions
on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words
“herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
a. Accounting Terms; GAAP
.
i. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time;
provided that (i) if the Company notifies each Administrative Agent that the Company requests an amendment to any provision hereof to eliminate the effect of any change
occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if any Administrative Agent notifies the Company that the
Required Lenders request an amendment to any provision hereof for such purpose (or with respect to an amendment to the computation of any ratio set forth in Section 6.09,
at the request of the Required Pro Rata Lenders)), regardless of whether any such notice is given before or after
896290.02-LACSR02A - MSW 73
such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change
shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith, (ii) notwithstanding anything in GAAP to the
contrary, for purposes of all financial calculations hereunder, the amount of any Indebtedness outstanding at any time shall be the stated principal amount thereof (except to the
extent such Indebtedness provides by its terms for the accretion of principal, in which case the amount of such Indebtedness at any time shall be its accreted amount at such
time) and (iii) notwithstanding anything to the contrary contained herein or in any other Loan Documents, with respect to any calculation or determination that requires the
application of GAAP for any period that includes a fiscal period of Total Produce ended prior to the Amendment No. 1 Effective Date, such calculation or determination shall
be made in accordance with IFRS instead of GAAP.
ii. Notwithstanding anything to the contrary herein, for purposes of any calculation of the Consolidated Net Leverage Ratio, the Senior Secured Net Leverage Ratio, LTM
Consolidated EBITDA, Consolidated EBITDA or Consolidated Total Assets, in the event that any Specified Transaction has occurred during the Test Period for which the
Consolidated Net Leverage Ratio, the Senior Secured Net Leverage Ratio, LTM Consolidated EBITDA, Consolidated EBITDA or Consolidated Total Assets is being
calculated or, except for purposes of determining whether an Event of Default under Section 6.09 has occurred, following the end of such Test Period but prior to the date that
financial statements have been delivered pursuant to Section 5.01(a) or (b), such calculation shall be made on a Pro Forma Basis.
iii. Notwithstanding anything to the contrary contained herein or in any other Loan Document, any change in accounting for leases pursuant to GAAP resulting from the adoption
of Financial Accounting Standards Board Accounting Standards Update No. 2106-02, Leases (Topic 842), to the extent such adoption would require treating any lease (or
similar arrangement conveying the right to use) as a capital lease where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in
effect on December 31, 2018, such lease shall not be considered a capital lease (and obligations in respect of such lease shall not be considered “Capital Lease Obligations”),
and all calculations and deliverables (other than financial statements) under this Agreement or any other Loan Document shall be made or delivered, as applicable, in
accordance therewith.
iv. Limited Condition Transaction. In connection with determining whether any Limited Condition Transaction is permitted hereunder and any action being taken in connection
with a Limited Condition Transaction, for purposes of:
1. determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Total Net Leverage Ratio or the Senior Secured Net
Leverage Ratio; or
896290.02-LACSR02A - MSW 74
2. testing availability under baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total Assets, LTM Consolidated EBITDA or
Consolidated EBITDA);
in each case, at the option of the Company (the Company’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of
whether any such action is permitted hereunder shall be deemed to be the date the definitive agreement for such Limited Condition Transaction is entered into (the “LCT Test Date”), and if, after
giving pro forma effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds
thereof) as if they had occurred at the beginning of the most recent Test Period ending prior to the LCT Test Date for which consolidated financial statements of the Company are available, the
Company could have taken such action on the relevant LCT Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of
doubt, if the Company has made an LCT Election and any of the ratios or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in
any such ratio or basket, including due to fluctuations in LTM Consolidated EBITDA, Consolidated EBITDA or Consolidated Total Assets of the Company or the Person subject to such Limited
Condition Transaction, after the LCT Test Date and at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have failed to have been
satisfied as a result of such fluctuations. If the Company has made an LCT Election for any Limited Condition Transaction, then in connection with any event or transaction occurring after the
relevant LCT Test Date and prior to the earlier of (x) the date on which such Limited Condition Transaction is consummated and (y) the date that the definitive agreement or date for redemption,
repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction is terminated, expires or passes, as applicable, without
consummation of such Limited Condition Transaction (a “Subsequent Transaction”) in connection with which a ratio, test or basket availability calculation must be made on a Pro Forma Basis or
giving pro forma effect to such Subsequent Transaction, for purposes of determining whether such ratio, test or basket availability has been complied with under this Agreement, any such ratio, test
or basket shall be required to be satisfied both (i) assuming such Limited Condition Transaction has not been consummated and (ii) on a Pro Forma Basis assuming such Limited Condition
Transaction and any other pro forma events in connection therewith have been consummated. In connection with any action being taken in connection with a Limited Condition Transaction, for
purposes of determining compliance with any provision of this Agreement (other than any Credit Extension under the Revolving Facility) which requires that no Default, Event of Default or
specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, or that the representations and warranties be true and correct, such
condition shall, at the option of the Company, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists or that the representations and
warranties are true and correct, as applicable, on the date the definitive agreements for such Limited Condition Transaction are entered into. For the avoidance of doubt, if the Company has made an
LCT Election, and any Default, Event of Default or specified Event of Default occurs, or any representations and warranties are not true and correct, following the date the definitive agreements for
the applicable Limited Condition Transaction were entered into and prior to the consummation of such Limited Condition Transaction, any such Default, Event of Default or specified Event of
Default shall be deemed to not have occurred or be continuing and that the representations and warranties shall be deemed to be true and correct for purposes of determining
896290.02-LACSR02A - MSW 75
whether any action being taken in connection with such Limited Condition Transaction is permitted hereunder.
i. Foreign Currency Calculations. For purposes of determining (i) compliance with any Dollar-denominated restriction on the incurrence of any Indebtedness or Investment or
the making of any Disposition or Restricted Payment are determined by reference to amounts stated in Dollars or (ii) any other provision of a Loan Document where the
permissibility of a transaction or the determination of required actions are determined by reference to amounts stated in Dollars, the Dollar equivalent of such Indebtedness,
Investment, Disposition, Restricted Payment or other relevant amount denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in
effect on (A) the date incurred or made or (B) with respect to any revolving Indebtedness, the date such Indebtedness was committed; provided that (x) that for purposes of
determining compliance with Article VI with respect to the amount of any Indebtedness, Investment, Disposition or Restricted Payment in a currency other than Dollars, no
Default or Event of Default shall be deemed to have occurred solely as a result of changes in rates of exchange occurring after the time such Indebtedness or Investment is
incurred or Disposition or Restricted Payment made (and, in particular, without limitation, for purposes of computations hereunder, unless expressly provided otherwise,
where a reference is made to a Dollar amount, the amount is to be considered as the amount in Dollars and, therefore, each other currency shall be converted into the Dollar
Equivalent thereof in Dollars, as applicable) and (y) if any such Indebtedness is incurred to extend, replace, refund, refinance, renew or defease other Indebtedness
denominated in a foreign currency, and such extension, replacement, refunding, refinancing, renewal or defeasance would cause the applicable Dollar-denominated restriction
to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such extension, replacement, refunding, refinancing, renewal or defeasance, such
Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal
amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased. The principal amount of any Indebtedness incurred to extend, replace,
refund, refinance, renew or defease other Indebtedness, if incurred in a different currency from the Indebtedness being extended, replaced, refunded, refinanced, renewed or
defeased, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date
of such extension, replacement, refunding, refinancing, renewal or defeasance.
b. Payments or Performance on Business Days
. When the payment of any Obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of
such payment or performance shall extend to the immediately succeeding Business Day and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that,
with respect to any payment of interest on or principal of Eurocurrency Loans or
896290.02-LACSR02A - MSW 76
RFR Loans, if such extension would cause any such payment to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
a. Rounding
. Any financial ratios required to be maintained by the Company pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the
result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest
number).
a. Additional Alternative Currencies
.
i. The Company may from time to time request that Alternative Currency Revolving Loans be made and/or Alternative Currency Letters of Credit be issued in a currency other
than Dollars or those specifically listed in the definition of “Alternative Currency”; provided that such requested currency is a lawful currency that is readily available and
freely transferable and convertible into Dollars. In the case of any such request with respect to the making of Alternative Currency Revolving Loans, such request shall be
subject to the approval of the Pro Rata Administrative Agent and each of the Revolving Lenders; and in the case of any such request with respect to the issuance of Alternative
Currency Letters of Credit, such request shall be subject to the approval of the Pro Rata Administrative Agent, each Revolving Lender and the applicable Issuing Bank.
ii. Any such request shall be made to the Pro Rata Administrative Agent not later than 2:00 p.m. New York City time five (5) Business Days prior to the date of the desired Credit
Event (or such other time or date as may be agreed by the Pro Rata Administrative Agent and, in the case of any such request pertaining to Alternative Currency Letters of
Credit, the applicable Issuing Bank, in its or their sole discretion). In the case of any such request pertaining to Alternative Currency Revolving Loans, the Pro Rata
Administrative Agent shall promptly notify each Revolving Lender; and in the case of any such request pertaining to Alternative Currency Letters of Credit, the Pro Rata
Administrative Agent shall promptly notify each Revolving Lender and the applicable Issuing Bank. Each Revolving Lender (in the case of any such request pertaining to
Alternative Currency Revolving Loans) or the applicable Issuing Bank (in the case of a request pertaining to Alternative Currency Letters of Credit) shall notify the Pro Rata
Administrative Agent, not later than 2:00 p.m. New York City time, one (1) Business Day after receipt of such request whether it consents, in its sole discretion, to the making
of Alternative Currency Revolving Loans or the issuance of Alternative Currency Letters of Credit, as the case may be, in such requested currency.
iii. Any failure by a Revolving Lender or an Issuing Bank, as the case may be, to respond to such request within the time period specified in the preceding sentence shall be
deemed to be a refusal by such Revolving Lender or such Issuing Bank, as the case may be, to permit Alternative Currency Revolving Loans to be made in such requested
currency or Alternative Currency Letters of Credit to be issued in such requested
896290.02-LACSR02A - MSW 77
currency. If the Pro Rata Administrative Agent and all the Revolving Lenders consent to making Alternative Currency Revolving Loans in such requested currency, the Pro
Rata Administrative Agent shall so notify the Company and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of
any Borrowings of Alternative Currency Revolving Loans; and if the Pro Rata Administrative Agent, each Revolving Lender and the applicable Issuing Bank consent to the
issuance of Alternative Currency Letters of Credit in such requested currency, the Pro Rata Administrative Agent shall so notify the Company and such currency shall
thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Alternative Currency Letter of Credit issuances by such Issuing Bank. If the
Pro Rata Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.07, the Pro Rata Administrative Agent shall promptly
so notify the Company.
b. Change of Currency
.
i. Each obligation of any Borrower to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful
currency after the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation). If, in relation to the currency of any
such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the London
interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on
which such member state adopts the Euro as its lawful currency; provided that if any Borrowing in the currency of such member state is outstanding immediately prior to such
date, such replacement shall take effect, with respect to such Borrowing, at the end of the then current Interest Period.
ii. Each provision of this Agreement shall be subject to such reasonable changes of construction as the Pro Rata Administrative Agent may from time to time specify to be
appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.
iii. Each provision of this Agreement also shall be subject to such reasonable changes of construction as the Pro Rata Administrative Agent may from time to time specify to be
appropriate to reflect a change in currency of any other country and any relevant market conventions or practices relating to the change in currency.
c. Times of Day
. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
a. Letter of Credit Amounts
. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such
time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms
896290.02-LACSR02A - MSW 78
of any document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the
maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
a. Exchange Rates
. The Pro Rata Administrative Agent or the applicable Issuing Bank, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent
amounts of Credit Events and Outstanding Amounts denominated in Alternative Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates
employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by the Loan Parties hereunder
or calculating financial ratios, financial definitions or the Financial Covenant hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for
purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the applicable Administrative Agent or the applicable Issuing Bank, as applicable.
a. Administrative Agents
. Each Lender, each Administrative Agent, the Collateral Agent, each Issuing Bank, the Swingline Lender and any other party hereto agrees that (i) the Term B Administrative Agent shall be
the administrative agent with respect to the Term B Loans and the Term B Lenders and shall exercise such duties, rights and responsibilities set forth herein applicable to the Term B Loans and the
Term B Lenders and (ii) the Pro Rata Administrative Agent shall be the administrative agent with respect to the Revolving Loans, the Revolving Commitments, the Revolving Lenders, the Term A
Loans, the Term A Lenders, Swingline Loans, the Swingline Lender, Letters of Credit, L/C Advances and Issuing Banks and shall exercise such duties, rights and responsibilities set forth herein
applicable to the Revolving Loans, the Revolving Commitments, the Revolving Lenders, the Term A Loans, the Term A Lenders, the Swingline Loans, the Swingline Lender, the Letters of Credit,
the L/C Advances and the Issuing Banks. References to “applicable” Administrative Agent mean, when referring to a Term B Loan or Term B Lender, the Term B Administrative Agent, and when
referring to the Revolving Loans, the Revolving Commitments, the Revolving Lenders, Term A Loans, Term A Lenders, Swingline Loans, Swingline Lender, Letters of Credit, L/C Advances and
Issuing Banks, the Pro Rata Administrative Agent. With respect to any matter relating to whether any Term B Lender has consented to or provided any direction on any matter, the Pro Rata
Administrative Agent shall be fully protected in relying on any determination by the Term B Administrative Agent as to such matter and with respect to any matter relating to whether any Pro Rata
Lender has consented to or provided any direction on any matter, the Term B Administrative Agent shall be fully protected in relying on any determination by the Pro Rata Administrative Agent as
to such matter.
a. Pro Forma Calculations
.
1. Notwithstanding anything to the contrary herein, financial ratios and tests, including the Consolidated Net Leverage Ratio and the Senior Secured Net Leverage Ratio, and
compliance with covenants determined by reference to Consolidated EBITDA or Consolidated Total Assets, shall be calculated in the manner prescribed by this Section 1.13;
provided, that notwithstanding anything to the contrary in clauses (b), (c), (d) or (e) of this Section 1.13, when calculating the Consolidated Net Leverage Ratio for purposes of
(i) determining the “Applicable Rate” with respect to the
896290.02-LACSR02A - MSW 79
Revolving Loans, (ii) Section 6.09 (other than for the purpose of determining pro forma compliance with Section 6.09) and (iii) Section 2.10(b)(iii), in each case, the events
described in this Section 1.13 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.
1. For purposes of calculating any financial ratio or test or compliance with any covenant determined by reference to Consolidated EBITDA or Consolidated Total Assets,
Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.13) that have been made (i)
during the applicable Test Period or (ii) other than as described in the proviso to clause (a) above, subsequent to such Test Period and prior to or simultaneously with the event
for which the calculation of any such ratio or test, or any such calculation of Consolidated EBITDA or Consolidated Total Assets, is made shall be calculated on a pro forma
basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to
any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of Consolidated Total Assets, on the last day of the applicable Test
Period) but without giving pro forma effect to any Indebtedness incurred substantially concurrently therewith under any other basket that is not a leverage-based incurrence
test. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or
into the Company or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment
pursuant to this Section 1.13, then such financial ratio or test (or Consolidated EBITDA or Consolidated Total Assets) shall be calculated to give pro forma effect thereto in
accordance with this Section 1.13.
2. Whenever pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a Financial Officer of the Company and may
include, for the avoidance of doubt, subject to the limitations set forth in the definition of Consolidated EBITDA, the amount of “run rate” cost savings, operating expense
reductions and synergies related to the Transactions or any other Specified Event resulting from or relating to such Specified Transaction projected by the Company in good
faith to be realizable as a result of actions taken or with respect to which substantial steps have been taken or are expected to be taken (calculated on a pro forma basis as
though such cost savings, operating expense reductions and synergies had been realized on the first day of such period and as if such cost savings, operating expense
reductions and synergies were realized during the entirety of such period and such that “run-rate” means the full recurring benefit for a period that is associated with any action
taken, for which substantial steps have been taken or are expected to be taken net of the amount of actual benefits realized during such period from such actions), and any such
adjustments shall be included in the initial pro forma calculations of such financial
896290.02-LACSR02A - MSW 80
ratios or tests relating to such Specified Transaction (and in respect of any subsequent pro forma calculations in which such Specified Transaction or cost savings, operating
expense reductions and other operating improvements, changes and initiatives, and synergies are given pro forma effect) and during any applicable subsequent Test Period for
any subsequent calculation of such financial ratios and tests; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment
of the Company, (B) such actions are taken or substantial steps with respect to such actions are or are expected to be taken no later than 18 months after the date of such
Specified Transaction (with actions for any such transaction occurring prior to the Closing Date occurring within 18 months of the Closing Date), (C) no amounts shall be
added to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA (or any other components thereof), whether through a pro
forma adjustment or otherwise, with respect to such period and (D) the aggregate amount added back, together with amounts added back pursuant to clause (x)(vi), clause (x)
(vii) and clause (x)(xiii) of the definition of “Consolidated EBITDA” , shall not exceed the greater of (x) $76,000,000 and (y) 20% of Consolidated EBITDA for the four
quarter period ending on any date of determination (prior to giving effect to the addback of such items and pursuant to clause (x)(vi), clause (x)(vii) and clause (x)(xiii) and
excluding any addbacks in connection with the Transactions) (it being understood and agreed that any adjustment that may be made pursuant to clause (x)(vi) or clause (x)(vii)
of the definition of “Consolidated EBITDA” made in connection with the Transactions shall not be subject to such cap).
3. In the event that (w) the Company or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by repurchase, redemption, repayment,
retirement, discharge, defeasance or extinguishment) any Indebtedness (in each case, other than Indebtedness incurred or repaid under any revolving credit facility or line of
credit in the ordinary course of business for working capital purposes) or (x) the Company or any Restricted Subsidiary issues, repurchases or redeems Disqualified Equity
Interests, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation
of any financial ratio or test is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence, assumption, guarantee, repurchase,
redemption, repayment, retirement, discharge, defeasance or extinguishment of Indebtedness, or such issuance, repurchase or redemption of Disqualified Equity Interests, in
each case to the extent required, as if the same had occurred on the last day of the applicable Test Period (except in the case of the Interest Coverage Ratio (or similar ratio), in
which case such incurrence, assumption, guarantee, repurchase, redemption, repayment, retirement, discharge, defeasance or extinguishment of Indebtedness or such issuance,
repurchase or redemption of Disqualified Equity Interests will be given effect as if the same had occurred on the first day of the applicable Test Period).
896290.02-LACSR02A - MSW 81
4. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date
of the event for which the calculation of the Interest Coverage Ratio is made had been the applicable rate for the entire period (taking into account any interest hedging
arrangements applicable to such Indebtedness). Interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a Financial
Officer of the Company to be the rate of interest implicit in such Capital Lease Obligation in accordance with GAAP. Interest on Indebtedness that may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be determined to have been based upon
the rate actually chosen, or if none, then based upon such optional rate as the Company or any applicable Restricted Subsidiary may designate.
a. Dutch Terms
. In this Agreement, where it relates to TP Dutch Holdings, a reference to (a) a necessary action to authorize where applicable, includes without limitation: (i) any action requires to comply
with the Dutch Works Councils Act (Wet op de ondernemingsraden); and (ii) obtaining an unconditional positive advice (advies) from the competent works council(s); (b) gross negligence means
grove schuld; (c) willful misconduct means opzet; (d) a dissolution includes a Dutch entity being dissolved (ontbonden); (e) a moratorium includes surseance van betaling and granted a moratorium
includes surseance verleend; (f) any step or procedure taken in connection with insolvency proceedings includes a Dutch entity having filed a notice under Section 36 of the 1990 Dutch Tax
Collection Act (Invorderingswet 1990); (g) a receiver includes a curator; (h) an administrator includes a bewindvoerder; and (i) an attachment includes a beslag.
a. Irish terms
. In this Agreement, any reference to an “examiner” means an examiner (including an interim examiner) appointed under section 509 of the Irish Companies Act and “examinership” shall be
construed accordingly.
a. Danish Terms
. In this Agreement, where it relates to a Loan Party or any subsidiary of a Loan Party incorporated or organized in Denmark, a reference to (i) bankruptcy, insolvency, receivership,
liquidation, conservatorship, rearrangement or similar shall include "rekonstruktion" and "konkurs" under Danish law; (ii) a receiver, custodian, conservator, trustee, administrator, sequestrator,
assignee for the benefit of creditors or similar shall include a "rekonstruktør" and a "kurator" under Danish law; (iii) Debtor Relief Laws shall include the Danish Bankruptcy Act (Consolidated Act
no. 11 of January 6, 2014, as amended) (konkursloven); (iv) an attachment, decree or similar shall include a "udlæg" under Danish law; (v) a merger, consolidation or similar shall include a "fusion"
under Danish law; and (vi) a dissolution or similar shall include a "spaltning" under Danish law.
a. Swedish Terms
. In this Agreement and any other Loan Document, where it relates to a Swedish Loan Party, a reference to:
a. an “assignment” or “arrangement” with any creditor includes a företagsrekonstruktion, konkursförfarande, or ackorduppgörelse under the Swedish Bankruptcy Act
(Sw. konkurslag (1987:672)) or the Swedish Reorgansation Act (Sw. lag (1996:764) om företagsrekonstruktion) (as the case may be);
896290.02-LACSR02A - MSW 82
a “receiver” or “administrator” includes a konkursförvaltare, företagsrekonstruktör or likvidator under Swedish law;
b.
a “merger” includes any fusion implemented in accordance with Chapter 23 of the Swedish Companies Act;
c.
a “liquidation”, “administration” or “dissolution” includes a tvångslikvidation under Chapter 25 of the Swedish Companies Act;
d.
a “guarantee” includes any garanti under Swedish law which is independent from the debt to which it relates and any borgen under Swedish law which is accessory to
e.
or dependent on the debt to which it relates;
f. “gross negligence” means grov vårdslöshet under Swedish law; and
g. if any party to this Agreement or any other Loan Document, that is incorporated in Sweden (the “Swedish Obligated Party”) is required to hold an amount on trust on
behalf of another party (the “Beneficiary”), the Swedish Obligated Party shall hold such money as agent for the Beneficiary and such amounts shall be treated as
“escrow funds” (Sw. redovisningsmedel) and held on a separate account in accordance with the Swedish Act of 1944 in respect of assets held on account (Sw. lag
(1944:181) om redovisningsmedel) and shall promptly pay or transfer the same to the Beneficiary or as the Beneficiary may direct.
The obligations of any Swedish Loan Party under this Agreement and any other Loan Document to which such Swedish Loan Party is a party shall be limited, if (and only if) required by the
provisions of the Swedish Companies Act regulating distribution of assets (Sw. värdeöverföring) within the meaning of Chapter 17, Sections 1-4 (or their equivalents from time to time) and, in
relation to any additional Swedish Loan Party, subject to any further limitations set out in any accession documents applicable to such additional Swedish Loan Party, if any, and it is understood that
such obligations shall apply only to the extent permitted by the abovementioned provisions of the Swedish Companies Act (as applicable).
a. Pro Rata Rates
. The Pro Rata Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, (a) the continuation of, administration of, submission
of, calculation of or any other matter related to the Pro Rata Base Rate, the Pro Rata Term SOFR Reference Rate, Pro Rata Adjusted Term SOFR, Pro Rata Adjusted Daily Compounded SOFR, Pro
Rata Term SOFR, SONIA, the Pro Rata Eurocurrency Rate, the Pro Rata Adjusted Eurocurrency Rate or any other Pro Rata Benchmark, or any component definition thereof or rates referred to in
the definition thereof, or any alternative, successor or replacement rate thereto (including any Pro Rata Benchmark Replacement), including whether the composition or characteristics of any such
alternative, successor or replacement rate (including any Pro Rata Benchmark Replacement), will be similar to, or produce the same value or economic equivalence of, or have the same volume or
liquidity as, the Pro Rata Base Rate, the Pro Rata Term SOFR Reference Rate, Pro Rata Adjusted Term SOFR, Pro Rata Adjusted Daily Compounded SOFR, Pro Rata Term SOFR, SONIA, the Pro
Rata Eurocurrency Rate, the Pro Rata Adjusted Eurocurrency Rate or any other Pro Rata Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of
any Pro Rata Conforming Changes. The Pro Rata Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of Pro Rata Base Rate or a Pro
Rata Benchmark,
896290.02-LACSR02A - MSW 83
any alternative, successor or replacement rate (including any Pro Rata Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Pro Rata
Administrative Agent may select information sources or services in its reasonable discretion to ascertain the Pro Rata Base Rate, any Benchmark, any component definition thereof or rates referred
to in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind,
including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or
calculation of any such rate (or component thereof) provided by any such information source or service.
A. The Credits
a. Commitments
.
i. Subject to the terms set forth herein and solely the conditions set forth in Amendment No. 1, each Lender having a Term B Loan Commitment severally agrees to make a loan
(a “Term B Loan”) on the Amendment No. 1 Effective Date to the Term B Borrower in Dollars by making immediately available funds to the Term B Administrative Agent’s
Office not later than the time specified by the Term B Administrative Agent, which Term B Loans shall not exceed for any such Lender the Term B Loan Commitment of such
Lender. Amounts repaid in respect of Term B Loans may not be reborrowed.
ii. Subject to the terms and conditions set forth herein, each Revolving Lender agrees to make Revolving Loans to any Borrower in Dollars or Alternative Currencies from time
to time during the Availability Period in an aggregate principal amount that will not result in the Dollar Equivalent of such Lender’s Revolving Credit Exposure exceeding
such Lender’s Revolving Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow
Revolving Loans.
iii. Subject to the terms set forth herein and solely the conditions set forth in Amendment No. 1, each Lender having a Term A Loan Commitment severally agrees to make a loan
(a “Term A Loan”) on the Amendment No. 1 Effective Date to the Term A Borrowers in Dollars by making immediately available funds to the Pro Rata Administrative Agent’s
Office not later than the time specified by the Pro Rata Administrative Agent, which Term A Loans shall not exceed for any such Lender the Term A Loan Commitment of
such Lender. Amounts repaid in respect of Term A Loans may not be reborrowed.
b. Loans and Borrowings
.
i. Each Loan (other than a Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the Applicable Lenders ratably in
accordance with their respective Commitments of the applicable Class. The failure of any Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s
896290.02-LACSR02A - MSW 84
failure to make Loans as required. Any Swingline Loan shall be made in accordance with the procedures set forth in Section 2.04.
ii. Subject to Section 2.13, each Revolving Borrowing and Term Loan Borrowing shall be comprised (A) in the case of Borrowings denominated in Dollars, entirely of Base Rate
Loans, Term SOFR Loans or Pro Rata Daily Compounded SOFR Loans, (B) in the case of Borrowings denominated in Euros, Canadian Dollars or SEK, entirely of
Eurocurrency Loans, and (C) in the case of Borrowings denominated in Sterling, entirely of SONIA Rate Loans, in each case, of the same currency as the applicable Borrower
may request in accordance herewith. Each Base Rate Loan shall only be made in Dollars. Each Swingline Loan shall be a Base Rate Loan. Each SONIA Rate Loan shall only
be made in Sterling. Each Lender at its option may make any Eurocurrency Loan or RFR Loan by causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan; provided that any exercise of such option shall not affect the obligation of the applicable Borrowers to repay such Loan in accordance with the terms of this
Agreement.
iii. Each Borrowing of, conversion to or continuation of Eurocurrency Loans or RFR Loans shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple
(or, if not an integral multiple, the entire available amount) and not less than the Borrowing Minimum (or, in the case of Loans in any Alternative Currency that is not
expressly provided for in the definition of “Alternative Currency”, such other minimum amount and integral multiple specified by the Pro Rata Administrative Agent). Each
Borrowing of, conversion to or continuation of Base Rate Loans (other than Swingline Loans which shall be subject to Section 2.04) shall be in an aggregate amount that is an
integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum; provided that Eurocurrency Loans, RFR Loans and Base Rate Loans may be in an
aggregate amount that is equal to the entire unused balance of the total Revolving Commitments or that is required to finance the reimbursement of an L/C Disbursement as
contemplated by Section 2.05(c). Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at any time be more than a
total of ten (10) (or such larger amount as the Applicable Administrative Agent may agree in its sole discretion) Eurocurrency Borrowings or RFR Borrowings outstanding in
respect of each of the Revolving Facility, the Term Loan A Facility and the Term B Loan Facility.
iv. Notwithstanding any other provision of this Agreement, no Borrower shall be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period
requested (i) with respect to a Revolving Borrowing would end after the Revolving Credit Maturity Date, (ii) with respect to a Term A Loan Borrowing would end after the
Term A Loan Maturity Date or (iii) with respect to a Term B Loan Borrowing would end after the Term B Loan Maturity Date.
c. Requests for Borrowings
. To request a Borrowing, a conversion of Loans from one Type to the other or a continuation of Eurocurrency Loans or RFR Loans, the applicable Borrower, or the Company on
896290.02-LACSR02A - MSW 85
behalf of the applicable Borrower, shall notify the Applicable Administrative Agent of such request, which shall be given by a Borrowing Request not later than (i) 2:00 p.m. New York City time
one Business Day prior to the requested date of any Borrowing of Base Rate Loans, (ii) 2:00 p.m. New York City time three Business Days prior to the requested date of any Borrowing of,
conversion to or continuation of Eurocurrency Loans (other than any Eurocurrency Loans denominated in a Special Notice Currency), (iii) 2:00 p.m. New York City time three RFR Business Days
prior to the requested date of any Borrowing of, conversion to or continuation of RFR Loans or of any conversion of Term SOFR Loans to Base Rate Loans and (iv) 2:00 p.m. New York City time
five Business Days prior to the requested date of any Borrowing or continuation of Eurocurrency Loans denominated in a Special Notice Currency; provided, however, that if such Borrower wishes
to request Eurocurrency Loans or RFR Loans having an Interest Period other than one, three or six months in duration as provided in the definition of “Interest Period,” the applicable notice must be
received by the Applicable Administrative Agent not later than 2:00 p.m. New York City time (i) four Business Days prior to the requested date of such Borrowing, conversion or continuation of
Eurocurrency Loans (other than any Eurocurrency Loans denominated in a Special Notice Currency), (ii) four RFR Business Days prior to the requested date of such Borrowing, conversion or
continuation of RFR Loans, or (iii) five Business Days prior to the requested date of such Borrowing, conversion or continuation of Eurocurrency Loans denominated in a Special Notice Currency,
whereupon the Applicable Administrative Agent shall give prompt notice to the applicable Lenders of such request and determine whether the requested Interest Period is acceptable to all of them.
Not later than 2:00 p.m. New York City time, (i) three Business Days prior to the requested date of such Borrowing, conversion or continuation of Eurocurrency Loans (other than any Eurocurrency
Loans denominated in a Special Notice Currency), (ii) three RFR Business Days prior to the requested date of such Borrowing, conversion or continuation of RFR Loans or (iii) four Business Days
prior to the requested date of such Borrowing, conversion or continuation of Eurocurrency Loans denominated in a Special Notice Currency, the Pro Rata Administrative Agent shall notify the
applicable Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the applicable Lenders. Each Borrowing Request shall be
irrevocable (other than any Borrowing Request for an Alternative Currency or an Interest Period that has not been approved by all applicable Lenders) by and, in the case of a telephonic Borrowing
Request, shall be confirmed promptly by hand delivery or telecopy or transmission by electronic communication in accordance with Section 9.01(b) to the Applicable Administrative Agent of a
written Borrowing Request in a form attached hereto as Exhibit E and signed by the applicable Borrower, or the Company on behalf of the applicable Borrower. Each such telephonic and written
Borrowing Request shall specify the following information in compliance with Section 2.02:
1. the Class of Loans to which such Borrowing Request relates;
2. the aggregate amount of the requested Borrowing, conversion or continuation;
3. the date of such Borrowing, conversion or continuation, which shall be a Business Day;
4. whether such Borrowing, conversion or continuation is to be a Base Rate Borrowing, a Eurocurrency Borrowing or an RFR Borrowing;
5. in the case of a Eurocurrency Borrowing of Alternative Currency Revolving Loans, the currency in which such Borrowing is to be made, which shall be an Alternative
Currency;
896290.02-LACSR02A - MSW 86
6. in the case of a Eurocurrency Borrowing or a Term SOFR Borrowing, the Interest Period to be applicable thereto, which shall be a period contemplated by the
definition of the term “Interest Period”;
7. the location and number of a Borrower’s account or accounts to which funds are to be disbursed, which shall comply with the requirements of Section 2.06;
8. whether the applicable Borrower is requesting a new Borrowing, a conversion of Loans from one Type to the other, or a continuation of Eurocurrency Loans or RFR
Loans; and
9. the Type of Loans to be borrowed or to which existing Loans are to be converted.
If no election as to the Type of Borrowing is specified, then, in the case of a Revolving Borrowing denominated in Dollars, the requested Revolving Borrowing shall be a Base Rate Borrowing. In the case of a failure
to timely request a conversion or continuation of Eurocurrency Loans or RFR Loans, such Loans shall be continued as Eurocurrency Loans or RFR Loans in their original currency, as applicable, and, in the case of
Eurocurrency Loans or RFR Loans, with an Interest Period of one month’s duration. If no Interest Period is specified with respect to any requested Eurocurrency Borrowing or RFR Borrowing or conversion or
continuation of Eurocurrency Loans or RFR Loans, then the applicable Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in
accordance with this Section 2.03, the Applicable Administrative Agent shall advise each Applicable Lender of the details thereof and of the amount (and currency) of such Lender’s Loan to be made as part of the
requested Borrowing. Except as otherwise provided herein, a Eurocurrency Loan or RFR Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Loan or RFR Loan.
During the existence of an Event of Default, no Loans may be requested as, converted to or continued as Eurocurrency Loans or RFR Loans (whether in Dollars or any Alternative Currency)
without the consent of the Required Revolving Lenders, the Required Term A Lenders or the Required Term B Lenders (in each case, determined with respect to the applicable Class of Loans), as
applicable, and the Required Revolving Lenders may demand that any or all of the then outstanding Eurocurrency Loans denominated in an Alternative Currency be prepaid, or redenominated into
Dollars in the amount of the Dollar Equivalent thereof, on the last day of the then current Interest Period with respect thereto. No Loan may be converted into or continued as a Loan denominated in a
different currency, but instead must be prepaid in the original currency of such Loan and, in the case of a Revolving Loan, reborrowed in the other currency.
a. Swingline Loans
.
i. Subject to the terms and conditions set forth herein, the Swingline Lender agrees, in reliance upon the agreements of the other Revolving Lenders set forth in this Section 2.04,
to make Swingline Loans in Dollars to the Borrowers from time to time after the Amendment No. 1 Effective Date and during the then-remaining Availability Period; provided
that no such Swingline Loan shall be permitted if, after giving effect thereto, (i) the aggregate principal amount of outstanding Swingline Loans would exceed the Swingline
Loan Sublimit or (ii) the aggregate Revolving Credit Exposures would exceed the total Revolving Commitments; provided, further that the Swingline Lender shall not be
required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein,
896290.02-LACSR02A - MSW 87
the Borrowers may borrow, prepay and reborrow Swingline Loans. Immediately upon the making of a Swingline Loan, each Revolving Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such
Revolving Lender’s Applicable Percentage times the amount of such Swingline Loan.
ii. To request a Swingline Loan, the applicable Borrower, or the Company on behalf of the applicable Borrower, shall notify the Pro Rata Administrative Agent and Swingline
Lender of such request, which shall be irrevocable. Each such notice must be received by the Swingline Lender and the Pro Rata Administrative Agent not later than 2:00 p.m.
New York City time on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be no less than the applicable Minimum Borrowing Amount
and (ii) the requested borrowing date, which shall be a Business Day. Promptly after receipt by the Swingline Lender of any Swingline Loan Notice, the Swingline Lender will
confirm with the Pro Rata Administrative Agent (by telephone or in writing) that the Pro Rata Administrative Agent has also received such Swingline Loan Notice and, if not,
the Swingline Lender will notify the Pro Rata Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice (by
telephone or in writing) from the Pro Rata Administrative Agent (including at the request of any Lender) prior to 3:00 p.m. New York City time on the date of the proposed
Swingline Loan Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in Section 2.04(a), or (B) that one or
more of the applicable conditions specified in Section 4.02 is not then satisfied, then, the Swingline Lender shall make such Swingline Loan available to the applicable
Borrower by means of a credit to the general deposit account of the applicable Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the
reimbursement of an L/C Disbursement as provided in Section 2.05(c), by remittance to the relevant Issuing Bank) by 4:00 p.m., New York City time, on the requested date of
such Swingline Loan.
iii. (i) The Swingline Lender at any time in its sole and absolute discretion may request, on behalf of the applicable Borrower (each of which hereby irrevocably authorizes the
Swingline Lender to so request on its behalf), that each Revolving Lender make a Base Rate Revolving Loan in an amount equal to such Lender’s Applicable Percentage of
the amount of the applicable Class of Swingline Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Borrowing
Request for purposes hereof) and in accordance with the requirements of Section 2.02 and Section 2.03, without regard to the Borrowing Minimum and Borrowing Multiple
specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Commitments of the applicable Class and the conditions
set forth in Section 4.02. The Swingline Lender shall furnish the applicable Borrower with a copy of the applicable Borrowing Request promptly after delivering such notice
to the Pro Rata Administrative
896290.02-LACSR02A - MSW 88
Agent. Each Revolving Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Borrowing Request available to the Pro Rata
Administrative Agent in Same Day Funds for the account of the Swingline Lender at the Pro Rata Administrative Agent’s Office for the applicable Currency-denominated
payments not later than 1:00 p.m. New York City time on the day specified in such Borrowing Request, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes
funds available shall be deemed to have made a Base Rate Loan to the Borrowers in such amount. The Pro Rata Administrative Agent shall remit the funds so received to the
Swingline Lender.
(ii) If for any reason any Swingline Loan cannot be refinanced by such Base Rate Loan in accordance with clause (i), the request for Base Rate Loans submitted by the Swingline Lender as set forth
herein shall be deemed to be a request by the Swingline Lender that each of the Revolving Lenders fund its risk participation in the relevant Swingline Loan and such Revolving Lender’s payment
to the Pro Rata Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. If any Revolving Lender fails
to make available to the Pro Rata Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of
this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swingline Lender shall be entitled to recover from such Revolving Lender (acting through the Pro Rata Administrative Agent), on
demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per
annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the
foregoing. If such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Lender’s Base Rate Loan included in the relevant
Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of the Swingline Lender submitted to any Revolving Lender (through the Pro Rata Administrative
Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
(iii) Each Revolving Lender’s obligation to make Base Rate Loans or to purchase and fund risk participations in Swingline Loans pursuant to this Section 2.04(c) shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, any Borrower
or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Revolving Lender’s obligation to make Base Rate Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02. No such funding of risk
participations shall relieve or otherwise impair the obligation of the Borrowers to repay Swingline Loans, together with interest as provided herein.
i. (i) At any time after any Revolving Lender has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment on account of
such Swingline Loan, the Swingline Lender will distribute promptly to such Revolving Lender its Applicable Percentage thereof in the same funds as those received by the
Swingline Lender.
896290.02-LACSR02A - MSW 89
(ii) If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances
described in Section 9.08 (including pursuant to any settlement entered into by the Swingline Lender in its discretion), each Revolving Lender shall pay to the Swingline Lender its Applicable
Percentage thereof on demand of the Pro Rata Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the
applicable Overnight Rate. The Pro Rata Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Revolving Lenders under this clause shall
survive the payment in full of the Obligations and the termination of this Agreement.
i. The Swingline Lender shall be responsible for invoicing the Borrowers for interest on the Swingline Loans. Until each Revolving Lender funds its Base Rate Loan or risk
participation pursuant to this Section 2.04 to refinance such Revolving Lender’s Applicable Percentage of any Swingline Loan, interest in respect of such Applicable
Percentage shall be solely for the account of the Swingline Lender.
ii. The Borrowers shall make all payments of principal and interest in respect of the Swingline Loans directly to the Swingline Lender.
b. Letters of Credit
.
i. The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) each Issuing Bank agrees, in reliance upon the agreements of the Revolving Lenders set forth in this Section 2.05, (1) from time to time
on any Business Day during the period from the Amendment No. 1 Effective Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or any Alternative
Currency for the account of the Company or its Restricted Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor
drawings under the Letters of Credit; and (B) the Revolving Lenders severally agree to participate in Letters of Credit issued for the account of the Company or its Restricted Subsidiaries and any
drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the aggregate L/C Exposure shall not exceed the L/C Exposure Sublimit
and (y) subject to Section 1.11, the total Revolving Credit Exposures shall not exceed the total Revolving Commitments. Each request by the Company for the issuance or amendment of a Letter of
Credit shall be deemed to be a representation by the Company that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the
foregoing limits, and subject to the terms and conditions hereof, the Company’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Company may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. If agreed to by the relevant Issuing Bank, any letter of credit issued
pursuant to an agreement between the Issuing Bank and the Company or any of its Restricted Subsidiaries that satisfies the requirements of this Section 2.05 shall be deemed a “Letter of Credit”
hereunder as of the date agreed to by such Issuing Bank and shall be deemed issued hereunder as of such date. Neither Bank of America, N.A. nor Deutsche Bank AG, New York Branch shall have
any obligation to issue or amend any Letter of Credit (other than the deemed issuance of the Existing Letters of Credit on the Amendment No. 1 Effective Date).
(ii) No Issuing Bank shall issue any Letter of Credit, if (A) subject to Section 2.05(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve
896290.02-LACSR02A - MSW 90
months after the date of issuance or last extension, unless the Required Lenders and the applicable Issuing Bank have approved such expiry date; or (B) the expiry date of such requested Letter of
Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Lenders and the applicable Issuing Bank have approved such expiry date.
(iii) No Issuing Bank shall be under any obligation to issue any Letter of Credit if:
a. any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such
Letter of Credit, or any Law applicable to such Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon such Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement
(for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Amendment No. 1 Effective Date, or shall impose upon such Issuing
Bank any unreimbursed loss, cost or expense which was not applicable on the Amendment No. 1 Effective Date and which such Issuing Bank in good faith
deems material to it;
b. the issuance of such Letter of Credit would violate one or more policies of such Issuing Bank applicable to letters of credit generally;
c. except as otherwise agreed by the Pro Rata Administrative Agent and such Issuing Bank, such Letter of Credit is in an initial stated amount less than $100,000;
d. except as otherwise agreed by the Pro Rata Administrative Agent, each Revolving Lender and such Issuing Bank, such Letter of Credit is to be denominated in
a currency other than Dollars or an Alternative Currency;
e. such Issuing Bank does not as of the issuance date of such requested Letter of Credit issue Letters of Credit in the requested currency;
f. such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
g. a default of any Revolving Lender’s (of the applicable Class) obligations to fund under Section 2.05(c) exists or any Revolving Lender (of the applicable Class)
is at such time a Defaulting Lender hereunder, unless such Issuing Bank has entered into satisfactory arrangements (in the Issuing Bank’s sole and absolute
discretion) with the Company or such Revolving Lender to eliminate the Issuing Bank’s risk with respect to such Revolving Lender.
896290.02-LACSR02A - MSW 91
(iv) No Issuing Bank shall amend any Letter of Credit if such Issuing Bank would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) No Issuing Bank shall be under any obligation to amend any Letter of Credit if (A) such Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form
under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) Each Issuing Bank shall act on behalf of the applicable Revolving Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each Issuing Bank shall
have all of the benefits and immunities (A) provided to the Pro Rata Administrative Agent in Article VII with respect to any acts taken or omissions suffered by such Issuing Bank in connection with
Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article VII included
such Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to such Issuing Bank.
(vii) Each of the Existing Letters of Credit shall (1) be deemed to have been issued under this Agreement on the Amendment No. 1 Effective Date and (2) notwithstanding Section 2.05(b) or any
other automatic extension provisions thereunder, shall terminate at its Existing Letter of Credit Termination Date unless otherwise agreed by the applicable Issuing Bank thereunder in its sole
discretion.
i. Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the applicable Borrower delivered to the applicable Issuing Bank (with a copy to the Pro Rata
Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the applicable Borrower (or of the Company on behalf of the
applicable Borrower). Such Letter of Credit Application must be received by the applicable Issuing Bank and the Pro Rata Administrative Agent not later than 12:00 noon New York City time, at
least two Business Days (or such later date and time as the applicable Issuing Bank may agree in a particular instance in its sole discretion) prior to the proposed issuance date or date of amendment,
as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the applicable Issuing Bank:
(A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof; (C) the expiry date thereof; (D) the name and address of the
beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any
drawing thereunder; and (G) such other matters as the applicable Issuing Bank may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the applicable Issuing Bank (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a
Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the applicable Issuing Bank may require. Additionally, the applicable Borrower shall furnish to the
applicable Issuing Bank and the Pro Rata Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer
Documents, as the applicable Issuing Bank or the Pro Rata Administrative Agent may reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application, the applicable Issuing Bank will confirm with the Pro Rata Administrative Agent (by telephone or in writing) that the
896290.02-LACSR02A - MSW 92
Pro Rata Administrative Agent has received a copy of such Letter of Credit Application from the applicable Borrower and, if not, such Issuing Bank will provide the Pro Rata Administrative Agent
with a copy thereof. Unless an Issuing Bank has received written notice from any Revolving Lender, the Pro Rata Administrative Agent or any Loan Party, at least one Business Day prior to the
requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Section 4.02 shall not then be satisfied, then, subject to the terms and
conditions hereof, such Issuing Bank shall, on the requested date, issue a Letter of Credit for the account of the applicable Borrower (or the applicable Restricted Subsidiary) or enter into the
applicable amendment, as the case may be, in each case in accordance with such Issuing Bank’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit by
an Issuing Bank, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from such Issuing Bank a risk participation in such Letter of Credit in
an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.
(iii) If any Borrower so requests in any applicable Letter of Credit Application, the applicable Issuing Bank may, in its sole and absolute discretion, agree to issue a Letter of Credit that has
automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the applicable Issuing Bank to prevent any such
extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-
Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the applicable Issuing Bank, the applicable
Borrower shall not be required to make a specific request to an Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have
authorized (but may not require) the applicable Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date;
provided, however, that no Issuing Bank shall permit any such extension if (A) such Issuing Bank has determined that it would not be permitted at such time to issue such Letter of Credit in its
revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.05(a) or otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Pro Rata Administrative Agent that the Required Lenders have elected not to permit
such extension or (2) from the Pro Rata Administrative Agent, or any Revolving Lender or the applicable Borrower that one or more of the applicable conditions specified in Section 4.02 is not then
satisfied, and in each such case directing such Issuing Bank not to permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the Issuing Bank will also deliver
to the applicable Borrower and the Pro Rata Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(v) For the avoidance of doubt, no Issuing Bank of Existing Letters of Credit shall be under any obligation to permit the extension of any of its Existing Letter of Credit.
i. Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable Issuing Bank shall notify the applicable Borrower and the Pro Rata
Administrative Agent thereof. In the case of a Letter of Credit denominated in an Alternative Currency, the applicable Borrower shall reimburse the applicable Issuing Bank in such Alternative
Currency, unless such Issuing Bank (at its option) shall have
896290.02-LACSR02A - MSW 93
specified in such notice that it will require reimbursement in Dollars; provided that, with respect to any Existing Letter of Credit denominated in Swiss Francs (each, a “Specified LC”), such
reimbursement shall be in Dollars based on the Dollar Equivalent amount of the drawing. In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in an
Alternative Currency, the applicable Issuing Bank shall notify the applicable Borrower of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof. Not later
than 12:00 Noon on the Business Day following any payment by an Issuing Bank under a Letter of Credit to be reimbursed in Dollars, or New York City time on the Business Day of any payment
by an Issuing Bank under a Letter of Credit to be reimbursed in an Alternative Currency (each such date, an “Honor Date”), the applicable Borrower shall reimburse such Issuing Bank through the
Pro Rata Administrative Agent in an amount equal to the amount of such drawing and in the applicable currency. If such Borrower fails to so reimburse such Issuing Bank by such time, the Pro Rata
Administrative Agent shall promptly notify each applicable Revolving Lender of the Honor Date, the amount and currency of the unreimbursed drawing (the “Unreimbursed Amount”), and the
amount of such Revolving Lender’s Applicable Percentage thereof. In such event, the applicable Borrower shall be deemed to have requested a Revolving Credit Borrowing of (x) in the case of a
Letter of Credit denominated in Dollars or a Specified LC, a Base Rate Loan denominated in Dollars in an equivalent amount and (y) in the case of a Letter of Credit denominated in an Alternative
Currency (other than a Specified LC), a Eurocurrency Loan or SONIA Rate Loan, as applicable, denominated in such Alternative Currency, in each case, to be disbursed on the Business Day
following the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the Borrowing Minimum and Borrowing Multiples for the principal amount of (x) in the case of a
Letter of Credit denominated in Dollars or a Specified LC, Base Rate Loans and (y) in the case of a Letter of Credit denominated in an Alternative Currency (other than a Specified LC),
Eurocurrency Loans or SONIA Rate Loans, as applicable, but subject to the amount of the unutilized portion of the applicable Class of Revolving Commitments and the conditions set forth in
Section 4.02 (other than the delivery of a Borrowing Notice). Any notice given by the applicable Issuing Bank or the Pro Rata Administrative Agent pursuant to this Section 2.05(c)(i) may be given
by telephone if promptly confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Revolving Lender shall upon any notice pursuant to Section 2.05(c)(i) make funds available to the Pro Rata Administrative Agent for the account of the applicable Issuing Bank, in the
currency in which the applicable drawing under the Letter of Credit was made (or, in the case of a Specified LC, in Dollars) in an amount equal to its Applicable Percentage of the Unreimbursed
Amount not later than 2:00 p.m. on the Business Day specified in such notice by the Pro Rata Administrative Agent, whereupon, subject to the provisions of Section 2.05(c)(iii), such Revolving
Lender that so makes funds available shall be deemed to have made of (x) in the case of a Letter of Credit denominated in Dollars or a Specified LC, a Base Rate Loan and (y) in the case of a Letter
of Credit denominated in an Alternative Currency, a Eurocurrency Loan or SONIA Rate Loan, as applicable, to the applicable Borrower in such amount. The Pro Rata Administrative Agent shall
remit the funds so received to the applicable Issuing Bank in the currency in which the applicable drawing under the Letter of Credit was made (or, in the case of a Specified LC, in Dollars).
(iii) With respect to any Unreimbursed Amount in respect of a Letter of Credit that is not fully refinanced by a Revolving Borrowing of (x) in the case of a Letter of Credit denominated in Dollars or
a Specified LC, Base Rate Loans and (y) in the case of a Letter of Credit denominated in an Alternative Currency (other than a Specified LC), Eurocurrency Loans
896290.02-LACSR02A - MSW 94
or SONIA Rate Loans, as applicable, because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the applicable Borrower shall be deemed to have incurred from the
applicable Issuing Bank a L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at the Default Rate. In such event, each Revolving Lender’s payment to the Pro Rata Administrative Agent for the account of the Issuing Bank pursuant to Section 2.05(c)(ii)
shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute a L/C Advance from such Lender in satisfaction of its participation obligation under this Section
2.05.
(iv) Until each applicable Lender funds its Revolving Loan or L/C Advance pursuant to this Section 2.05(c) to reimburse an Issuing Bank for any amount drawn under any Letter of Credit, interest
in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of such Issuing Bank.
(v) Each Revolving Lender’s obligation to make Revolving Loans or L/C Advances to reimburse each Issuing Bank for amounts drawn under Letters of Credit of the applicable Class issued by it, as
contemplated by this Section 2.05(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Revolving Lender may have against such Issuing Bank, any Borrower, any Subsidiary or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or
(C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender’s obligation to make Revolving Loans pursuant to this Section
2.05(c) is subject to the conditions set forth in Section 4.02 (other than delivery of a Borrowing Request). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the
Borrowers to reimburse an Issuing Bank for the amount of any payment made by such Issuing Bank under any Letter of Credit, together with interest as provided herein.
(vi) If any Revolving Lender fails to make available to the Pro Rata Administrative Agent for the account of an Issuing Bank any amount required to be paid by such Revolving Lender pursuant to
the foregoing provisions of this Section 2.05(c) by the time specified in Section 2.05(c)(ii), such Issuing Bank shall be entitled to recover from such Revolving Lender (acting through the Pro Rata
Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such
Issuing Bank at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Issuing Bank in
connection with the foregoing. If such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Lender’s Revolving Loan
included in the relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of an Issuing Bank submitted to any Lender (through the Pro Rata
Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.
i. Repayment of Participations.
(i) At any time after an Issuing Bank has made a payment under any Letter of Credit and has received from any Revolving Lender such Revolving Lender’s L/C Advance in respect of such payment
in accordance with Section 2.05(c), if the Pro Rata Administrative Agent receives for the account of such Issuing Bank any payment in respect of the related Unreimbursed Amount or interest
thereon (whether directly from any Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Pro Rata Administrative Agent), the
896290.02-LACSR02A - MSW 95
Pro Rata Administrative Agent will distribute promptly to such Revolving Lender its Applicable Percentage thereof in the same funds as those received by the Pro Rata Administrative Agent.
(ii) If any payment received by the Pro Rata Administrative Agent for the account of an Issuing Bank pursuant to Section 2.05(c)(i) is required to be returned under any of the circumstances
described in Section 9.08 (including pursuant to any settlement entered into by such Issuing Bank in its discretion), each Revolving Lender, in the case of a U.S. Letter of Credit, or any Alternative
Currency Revolving Lender, in the case of an Alternative Currency Letter of Credit, shall pay to the Pro Rata Administrative Agent for the account of such Issuing Bank its Applicable Percentage
thereof on demand of the Pro Rata Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Revolving Lender, at a rate per annum equal
to the applicable Overnight Rate from time to time in effect. The obligations of the Revolving Lenders under this clause shall survive the payment in full of the Obligations and the termination of
this Agreement.
i. Obligations Absolute. The obligation of the Borrowers to reimburse each Issuing Bank for each drawing under each Letter of Credit issued by it and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the
following: (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document; (ii) the existence of any claim, counterclaim, setoff,
defense or other right that the Company or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any
such beneficiary or any such transferee may be acting), the applicable Issuing Bank or any other Person, whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction; (iii) any draft, demand, certificate or other
document presented under such 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; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit; (iv) any payment by such
Issuing Bank under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment
made by such Issuing Bank under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; (v) any adverse change in the relevant exchange rates or in the availability of the relevant Alternative Currency to the Company or
any Subsidiary or in the relevant currency markets generally; or (vi) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including
any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Company or any Subsidiary. The applicable Borrower shall promptly
examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of
896290.02-LACSR02A - MSW 96
noncompliance with such Borrower’s instructions or other irregularity, such Borrower will promptly notify the applicable Issuing Bank. Each Borrower shall be conclusively
deemed to have waived any such claim against the applicable Issuing Bank and its correspondents unless such notice is given as aforesaid.
ii. Role of Issuing Banks. Each Revolving Lender and the Borrowers agree that, in paying any drawing under any Letter of Credit, no Issuing Bank shall have any responsibility
to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or
accuracy of any such document or the authority of the Person executing or delivering any such document. None of the Issuing Banks, the Pro Rata Administrative Agent, any
of their respective Related Parties nor any correspondent, participant or assignee of any Issuing Bank shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer
Document. Each Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude each Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or
under any other agreement. None of the Issuing Banks, the Pro Rata Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of any Issuing Bank shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.05(e); provided, however, that anything in
such clauses to the contrary notwithstanding, the applicable Borrower may have a claim against any Issuing Bank, and such Issuing Bank may be liable to such Borrower, to
the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by such Borrower which such Borrower proves were caused by
such Issuing Bank’s willful misconduct or gross negligence or such Issuing Bank’s willful failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, each
Issuing Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the
contrary, and such Issuing Bank shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
iii. Cash Collateral.
896290.02-LACSR02A - MSW 97
(i) Upon the request of the Pro Rata Administrative Agent, if, as of the Letter of Credit Expiration Date, any L/C Exposure for any reason remains outstanding, the Borrowers shall, in each case,
promptly Cash Collateralize the then L/C Exposure of all L/C Exposures.
(ii) In addition, if the Pro Rata Administrative Agent notifies the Company at any time that the L/C Exposure at such time exceeds 100% of the L/C Exposure Sublimit then in effect, then, within one
Business Day (or such later time as the Pro Rata Administrative Agent may agree in its sole discretion) after receipt of such notice, the Company shall Cash Collateralize the L/C Exposure in an amount equal to the
amount by which the L/C Exposure exceeds the L/C Exposure Sublimit.
(iii) The Pro Rata Administrative Agent may, at any time and from time to time after the initial deposit of Cash Collateral, request that additional Cash Collateral be provided in order to protect
against the results of exchange rate fluctuations.
(iv) Defaulting Lenders.
(a) At any time that there shall exist a Defaulting Lender, then the applicable Borrower shall, within one Business Day following the written request of the Pro Rata Administrative
Agent or any Issuing Bank (with a copy to the Pro Rata Administrative Agent), Cash Collateralize the applicable Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender (determined after giving
effect to Section 2.22(a)(iv) and any cash collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount.
(b) The Borrowers, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grant to the Pro Rata Administrative Agent, for the benefit of each Issuing
Bank, and agree to maintain, a first-priority security interest in all such cash collateral as security for the Defaulting Lenders’ obligation to fund participations in respect of L/C Exposure, to be applied pursuant to
subclause (c) below. If at any time the Pro Rata Administrative Agent determines that cash collateral is subject to any right or claim of any Person other than the Pro Rata Administrative Agent and the applicable
Issuing Bank as herein provided or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the applicable Borrower shall, promptly upon demand by the Pro Rata Administrative
Agent, pay or provide to the Pro Rata Administrative Agent additional cash collateral in an amount sufficient to eliminate such deficiency (after giving effect to any partial reallocation pursuant to Section 2.22(a)
(iv) and after giving effect to any cash collateral provided by the Defaulting Lender).
(c) Notwithstanding anything to the contrary contained in this Agreement, cash collateral provided under Section 2.05 or 2.22 in respect of Letters of Credit shall be applied to the
satisfaction of the Defaulting Lender’s obligation to fund participations in respect of Letters of Credit (including, as to cash collateral provided by a Defaulting Lender, any interest accrued on such obligation) for
which the cash collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.
(d) Cash collateral (or the appropriate portion thereof) provided to reduce any Issuing Bank’s Fronting Exposure shall no longer be required to be held as Cash Collateral pursuant to
this Section 2.05 following (i) the elimination of the applicable Fronting Exposure (including by replacement of the Defaulting Lender pursuant to Section 2.18 or the termination of Defaulting Lender status of the
applicable Lender), or (ii) the determination by the Pro Rata Administrative Agent and the applicable Issuing Bank that there exists excess cash collateral; provided that, subject to Section 2.22, the Person providing
cash collateral and each applicable Issuing Bank may agree that cash collateral shall be held to support future anticipated Fronting Exposure or other obligations; provided further that to the extent that such cash
collateral was provided by any Borrower, such cash collateral shall, to the extent applicable, remain subject to the security interest granted pursuant to the Loan Documents.
i. Applicability of ISP and UCP. Unless otherwise expressly agreed by the applicable Issuing Bank and the applicable Borrower when a Letter of Credit is issued (including any
such agreement applicable to an Existing
896290.02-LACSR02A - MSW 98
Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce at the time of issuance shall apply to each commercial Letter of Credit.
ii. Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.
iii. Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a
Restricted Subsidiary, the Company shall be obligated to reimburse the applicable Issuing Bank hereunder for any and all drawings under such Letter of Credit and the
Company shall be a co-applicant on all relevant Issuer Documents in respect of such Letter of Credit. The Company hereby acknowledges that the issuance of Letters of Credit
for the account of Restricted Subsidiaries inures to the benefit of the Company, and that the Company’s business derives substantial benefits from the businesses of such
Restricted Subsidiaries. No Letter of Credit will be issued hereunder in support of any obligations of, or is for the account of, a Restricted Subsidiary (other than any
Borrower) until the Pro Rata Administrative Agent has received documentation and other information about such Restricted Subsidiary as may be reasonably requested in
writing by the Pro Rata Administrative Agent or any Issuing Bank through the Pro Rata Administrative Agent that the Pro Rata Administrative Agent or such Issuing Bank, as
applicable, reasonably determines is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the
Patriot Act (and the results thereof shall have been reasonably satisfactory to the Pro Rata Administrative Agent or such Issuing Bank, as applicable).
c. Funding of Borrowings
.
i. Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds (i) in the case of Loans
denominated in Dollars by 2:00 p.m., New York City time, to the account of the Applicable Administrative Agent most recently designated by it for such purpose by notice to
the Lenders in an amount equal to such Lender’s Applicable Percentage or other percentage provided for herein and (ii) in the case of each Loan denominated in an Alternative
Currency by the New York City time specified by the Pro Rata Administrative Agent for such currency; provided that Swingline Loans shall be made as provided in Section
2.04. The Applicable Administrative Agent will make such Loans available to the applicable Borrower by promptly crediting the amounts so received, in like funds, to an
account or accounts designated by the applicable Borrower (or by the Company on behalf of the applicable Borrower) in the applicable Borrowing Request; provided that
Base Rate Revolving Loans made to finance the reimbursement of an L/C Disbursement as provided in Section 2.05(c)
896290.02-LACSR02A - MSW 99
shall be remitted by the Pro Rata Administrative Agent to the relevant Issuing Bank.
ii. Unless the Applicable Administrative Agent shall have received notice from an Applicable Lender prior to the proposed time of any Borrowing that such Lender will not make
available to the Applicable Administrative Agent such Lender’s share of such Borrowing, the Applicable Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section 2.06 and may, in reliance upon such assumption, make available to the applicable Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Applicable Administrative Agent, then the
applicable Lender and the applicable Borrower severally agree to pay to the Applicable Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available to the applicable Borrower to but excluding the date of payment to the Applicable
Administrative Agent, at (i) in the case of such Lender, the Overnight Rate or (ii) in the case of the applicable Borrower, the interest rate applicable to Base Rate Loans of the
applicable Class. If such Lender pays such amount to the Applicable Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.
d. [Reserved]
.
a. Termination and Reduction of Commitments
.
i. Unless previously terminated, (i) the Term A Loan Commitments shall terminate at 11:59 p.m., New York City time, on the Amendment No. 1 Effective Date, (ii) the Term B
Loan Commitments shall terminate at 11:59 p.m., New York City time, on the Amendment No. 1 Effective Date and (iii) all Revolving Commitments shall terminate on the
Revolving Credit Maturity Date.
ii. The Borrowers may at any time terminate, or from time to time reduce, the Commitments of any Class; provided that (i) each reduction of the Commitments of any Class shall
be in an amount that is an integral multiple of $1,000,000 and not less than $1,000,000 (or, if less, the remaining amount of such Commitments) and (ii) the Borrowers shall
not terminate or reduce the Revolving Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.10, the total Revolving
Credit Exposures would exceed the total Revolving Commitments.
iii. The applicable Borrower shall notify the applicable Administrative Agent by telephone (confirmed by telecopy or transmission by electronic communication in accordance
with Section 9.01(b)) of any election to terminate or reduce the Commitments under paragraph (b) of this Section not later than 12:00 p.m. New York City time three (3)
Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any
a. Notices; Standards for Decisions and Determinations. The Pro Rata Administrative Agent will promptly notify the Company and the Revolving Lenders (and, in the case of
the Pro Rata Benchmark for Dollars, the Term A Lenders) of (i) the implementation of any Pro Rata Benchmark Replacement and (ii) the effectiveness of any Pro Rata
Conforming Changes in connection with the use, administration, adoption or implementation of a Pro Rata Benchmark Replacement. The Pro Rata Administrative Agent
will notify the Company of (x) the removal or reinstatement of any tenor of a Pro Rata Benchmark pursuant to Section 2.13(c)(iv) and (y) the commencement of any
Pro Rata Benchmark Unavailability Period. Any determination, decision or election that may be made by the Pro Rata Administrative Agent, the Company or, if
applicable, any Revolving Lender and/or Term A Lender (or group of Revolving Lenders and/or Term A Lenders, as applicable)
a. Pro Rata Benchmark Unavailability Period. Upon the Company’s receipt of notice of the commencement of a Pro Rata Benchmark Unavailability Period with respect to a given
Benchmark, (i) the Company may revoke any pending request for an RFR Borrowing of, conversion to or continuation of RFR Loans, or a Eurocurrency Borrowing of, conversion to
or continuation of Eurocurrency Loans, in each case, to be made, converted or continued during any Pro Rata Benchmark Unavailability Period denominated in the applicable
currency and, failing that, (A) in the case of any request for any affected Pro Rata Term SOFR Borrowing or Pro Rata Daily Compounded SOFR Borrowing, if applicable, the
Company will be deemed to have converted any such request into a request for a Pro Rata Base Rate Borrowing or
1. Term B Benchmark Replacement: Notwithstanding anything to the contrary herein or in any other Loan Document:
a. [Reserved].
b. Upon (A) the occurrence of a Term B Benchmark Transition Event or (B) a determination by the Term B Administrative Agent that the alternative under clause (1) of
the definition of Term B Benchmark Replacement is unavailable, the Term B Benchmark Replacement will replace the then-current Term B Benchmark for all
purposes hereunder and under any Loan Document in respect of any Term B Benchmark setting at or after 5:00 p.m. on the fifth (5th) Business Day after the date
notice of such Term B Benchmark Replacement is provided to the Term B Lenders without any amendment to, or further action or consent of any
a. Restrictive Agreements
. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon the ability of any Restricted Subsidiary that is not a Guarantor to pay dividends or other distributions with respect to holders of its Equity Interests; provided
that the foregoing shall not apply to (i) prohibitions, restrictions and conditions imposed by law or by this Agreement or any other Loan Document and any Permitted Refinancing Indebtedness in
respect thereof, (ii) prohibitions, restrictions and conditions existing on the Closing Date (or any extension, refinancing, replacement or renewal thereof or any amendment or modification thereto
that is not, taken as a whole, materially more restrictive (in the good faith determination of the Company) than any such restriction or condition), (iii) prohibitions, restrictions and conditions arising
in connection with any Disposition permitted by Section 6.11 with respect to the Property subject to such Disposition, (iv) customary prohibitions, restrictions and conditions contained in
agreements relating to a Permitted Receivables Facility, (v) agreements or arrangements binding on a Restricted Subsidiary at the time such Restricted Subsidiary becomes a Restricted Subsidiary of
the Company or any permitted extension, refinancing, replacement or renewal of, or any amendment or modification to, any such agreement or arrangement so long as any such extension,
refinancing, renewal, amendment or modification is not, take as a whole, materially more restrictive (in the good faith determination of the Company) than such agreement or arrangement, (vi)
prohibitions, restrictions and conditions set forth in Indebtedness of a Restricted Subsidiary that is not a Loan Party which is permitted by this Agreement, (vii) agreements or arrangements that are
customary provisions in joint venture agreements and other similar agreements or arrangements applicable to joint ventures, (viii) prohibitions, restrictions or conditions imposed by any agreement
relating to secured Indebtedness permitted by this Agreement if such prohibitions, restrictions or conditions apply only to the Restricted Subsidiaries incurring or Guaranteeing such Indebtedness,
(ix) customary provisions in leases, subleases, licenses, sublicenses or permits so long as such prohibitions, restrictions or conditions relate only to the property subject thereto, (x) customary
provisions in leases restricting the assignment or subletting thereof, (xi) customary provisions restricting assignment or transfer of any contract entered into in the ordinary course of business or
otherwise permitted hereunder, (xii) prohibitions, restrictions or conditions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business, (xiii)
prohibitions, restrictions or conditions imposed by a Lien permitted by Section 6.02 with respect to the transfer of the Property subject thereto, (xiv) restrictions on cash or other deposits or net
worth imposed by customers under contracts entered into in the ordinary course of business, (xv) any limitation or prohibition on the disposition or distribution of assets or property in asset sale
agreements, stock sale agreements and other similar agreements, which limitation or prohibition is applicable only to the assets that are the subject of such agreements and (xvi) prohibitions,
restrictions or conditions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business.
a. Dispositions
. The Company will not, and will not permit any Restricted Subsidiary to, make any Disposition, except:
We consent to the incorporation by reference in the registration statements (No. 333-258406 and No. 333-261591) on Form S-8 of our report dated March 28, 2024, with respect to the consolidated
financial statements of Dole plc and the effectiveness of internal control over financial reporting.
/s/ KPMG
Dublin, Ireland
March 28, 2024
DOLE PLC
This Policy is administered by the Compensation Committee (the “Committee”) of the Company’s Board of Directors, and is intended to comply with, and as applicable to be administered
and interpreted consistent with, and subject to the exceptions set forth in, Listing Standard 303A.14 adopted by the New York Stock Exchange to implement Rule 10D-1 under the Securities
Exchange Act of 1934, as amended (collectively, “Rule 10D-1”).
For purposes of this Policy:
“Incentive-Based Compensation” means any compensation granted, earned, or vested based in whole or in part on the Company’s attainment of a financial reporting measure that was
Received by a person (i) on or after October 2, 2023 and after the person began service as a Covered Executive, and (ii) who served as a Covered Executive at any time during the performance
period for the Incentive-Based Compensation. A financial reporting measure is (a) any measure that is determined and presented in accordance with the accounting principles used in preparing the
Company’s financial statements and any measure derived wholly or in part from such a measure, and (b) any measure based in whole or in part on the Company’s stock price or total shareholder
return.
Incentive-Based Compensation is deemed to be “Received” in the fiscal period during which the relevant financial reporting measure is attained, regardless of when the compensation is
actually paid or awarded.
“Covered Executive” means any “executive officer” of the Company as defined under Rule 10D-1, as designated by the Company’s Board of Directors from time to time, and any other
person designated by the Company’s Executive Chair, Chief Executive Officer, and Chief Operating Officer.
“Recovery Period” means the three completed fiscal years immediately preceding the date that the Company is required to prepare the accounting restatement described in this Policy, all as
determined pursuant to Rule 10D-1, and any transition period of less than nine months that is within or immediately following such three fiscal years.
If the Committee determines the amount of Incentive-Based Compensation Received by a Covered Executive during a Recovery Period exceeds the amount that would have been Received if
determined or calculated based on the Company’s restated financial results, such excess
amount of Incentive-Based Compensation shall be subject to recoupment by the Company pursuant to this Policy. For Incentive-Based Compensation based on stock price or total shareholder
return, where the amount of erroneously awarded compensation is not subject to mathematical recalculation directly from the information in an accounting restatement, the Committee will
determine the amount based on a reasonable estimate of the effect of the accounting restatement on the relevant stock price or total shareholder return. In all cases, the calculation of the excess
amount of Incentive-Based Compensation to be recovered will be determined without regard to any taxes paid with respect to such compensation. The Company will maintain and will provide to
the New York Stock Exchange documentation of all determinations and actions taken in complying with this Policy. Any determinations made by the Committee under this Policy shall be final and
binding on all affected individuals.
The Company may effect any recovery pursuant to this Policy by requiring payment of such amount(s) to the Company, by set-off, by reducing future compensation, or by such other means
or combination of means as the Committee determines to be appropriate. The Company need not recover the excess amount of Incentive-Based Compensation if and to the extent that the Committee
determines that such recovery is impracticable, subject to and in accordance with any applicable exceptions under the New York Stock Exchange listing rules, and not required under Rule 10D-1,
including if the Committee determines that the direct expense paid to a third party to assist in enforcing this Policy would exceed the amount to be recovered after making a reasonable attempt to
recover such amounts. The Company is authorized to take appropriate steps to implement this Policy with respect to Incentive-Based Compensation arrangements with Covered Executives.
Any right of recoupment or recovery pursuant to this Policy is in addition to, and not in lieu of, any other remedies or rights of recoupment that may be available to the Company pursuant to
the terms of any other policy, any employment agreement or plan or award terms, and any other legal remedies available to the Company; provided that the Company shall not recoup amounts
pursuant to such other policy, terms or remedies to the extent it is recovered pursuant to this Policy. The Company shall not indemnify any Covered Executive against the loss of any Incentive-
Based Compensation (or provide any advancement of expenses in such instance), including any payment or reimbursement for the cost of third-party insurance purchased by any Covered
Executives to fund potential recovery obligations under this Policy.
DOLE PLC
COMPENSATION RECOUPMENT POLICY
ACKNOWLEDGEMENT AND ACCEPTANCE FORM
The undersigned has received a copy of the Compensation Recoupment Policy (the “Policy”) adopted by Dole plc. The Policy includes the Policy in effect as of the date of this
acknowledgment and as may be in effect and interpreted or modified from time to time by the Board or as required by applicable law or the requirements of any securities exchange on which the
Company’s securities are listed, and such interpretation or modification will be covered by this acknowledgment.
For good and valuable consideration, the receipt of which is acknowledged, the undersigned agrees to the terms of the Policy and agrees that compensation received by the
undersigned may be subject to reduction, cancellation, forfeiture and/or recoupment to the extent necessary to comply with the Policy, including if applicable under the Policy after any employment
with Dole has ceased, notwithstanding any other agreement to the contrary including for example any employment or equity award agreement. The undersigned further acknowledges and agrees
that the undersigned is not entitled to indemnification of any kind in connection with any enforcement of the Policy and expressly waives any rights to such indemnification under the Company’s
organizational documents or otherwise.
Signature
Print Name
Date