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MUTUAL SUPPLY AGREEMENT JAPAN

Source: http://www.sec.gov/Archives/edgar/data/18169/000119312512399881/d413707dex21.htm

MUTUAL SUPPLY AGREEMENT

THIS MUTUAL SUPPLY AGREEMENT and the schedules referenced herein (collectively this “Agreement”) are entered into as of                     , 2012 (“Effective Date”) by and between Dole Food Company, Inc., a Delaware corporation (together with its affiliated entities, “Dole”), and Dole Asia Holdings Pte Ltd. (together with its affiliated entities, “DAL”). Dole and DAL are referred to herein individually as a “Party” and collectively as the “Parties.”

The purpose of this Agreement is to provide a mechanism by which Dole and DAL may purchase products and services from one another, and the terms related thereto.

1.1. Term. Unless terminated earlier pursuant to Section 1.2, the term of this Agreement begins on the Closing Date, as defined in the Acquisition Agreement between Dole and ITOCHU dated September 17, 2012 (“Closing Date”) and ends on December 31, 2015 (the “Term”), and will automatically renew for subsequent three-year terms unless either Party provides notice of an intent not to renew to the other Party at least 90 days before the date of automatic renewal.

1.2. Termination. Each Party will have the right to terminate this Agreement by written notice to the other if a Party has materially breached any obligation herein and such breach remains uncured for a period of 60 days after written notice of such breach is sent to the other Party.

2.1. Products. The products and services (collectively, “Products”) subject to this Agreement are set forth on Schedules 1 and 1A (Products that Dole will supply to DAL) and Schedule 2 (Products that DAL will supply to Dole), together with the specific terms under which the Products will be supplied and any additional attachments referenced therein. Schedules 1, 1A, and 2 may be amended from time to time as mutually agreed by the Parties.

2.2. Product Specifications. All Products sold, delivered and purchased by the Parties under this Agreement shall pass microbiological testing, chemical residue testing, quarantine testing, cold treatment testing, be of good shape, quality, state of maturity and condition, and meet other product specifications as mutually agreed by the Parties (the “Product Specifications”). A Party may refuse to accept delivery or reject all or any portion of the Products not in compliance with the Product Specifications, or in any way mis-designated or misrepresented (“Non-Conforming Products”). A Party may charge to the other Party all costs, freight and expenses paid or incurred by it in connection with the receipt, return, or disposal of any Non-Conforming Products, and such Non-Conforming Products shall not count towards any quantity and/or purchase requirements; provided, however, the Parties shall cooperate in good faith to resolve any disputes relating to Product Specifications and/or Non-Conforming Products.

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2.3. Title and Risk. Title and all risk of loss or damage to the Products shall pass from seller to buyer at times and places to be mutually agreed in accordance with customary trade or International Commercial Terms (Incoterms) in respect of each shipment.

3.1. Payment and Invoices. Notwithstanding anything to the contrary contained in this Agreement, including but not limited to Section 5.4 hereof, all sales made under this Agreement of Products grown and delivered in the United States shall be subject to the United States Perishable Agricultural Commodities Act (“PACA”), and as such, payment of invoices from seller shall be made by buyer within ten (10) days of receipt of Product. Interest shall accrue on any past due account balance at a rate of 1.5% per month (18% per annum). The Perishable Agricultural Commodities listed on each invoice are sold subject to the statutory trust authorized by section 5(c) of PACA. The Parties will discuss before the Closing Date the following, all sales F.O.B., no grade contract, good delivery standards apply, excluding bruising, discoloration and/or discoloration following bruising, all claims must be substantiated by a U.S.D.A. inspection, discrepancies must be reported in writing within 24 hours of receipt of product.

For all other sales, the seller will invoice the buyer for the total price for the Products upon delivery at the specified delivery point. Buyer will pay each invoice no later than 30 days after the latter of receipt of such invoice or the delivery of the Products.

All prices are payable in U.S. dollars.

3.2. Taxes. Buyer shall be responsible for any customs, import or other duties charged in respect of the importation of Products into the market destination, delivery point, or country in which buyer is located, and Seller shall be responsible for any applicable taxes, fees, duties charged in respect of the sale and exportation of the Products in the country in which the seller is resident.

EXCEPT AS PROVIDED IN THIS AGREEMENT AND/OR ANY PURCHASE ORDER ENTERED INTO UNDER THIS AGREEMENT, THE PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. NEITHER PARTY GUARANTEES NOR MAKES ANY REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE QUALITY, ACCURACY, VALIDITY, TIMELINESS, COMPLETENESS, AVAILABILITY OR CONTINUED AVAILABILITY OF ANY PRODUCTS, AND THE PARTIES FURTHER EXPLICITLY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING AND USAGE OF TRADE OR THEIR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION.

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5.1. Entire Agreement. This Agreement (including the documents referred to herein) constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes any prior or contemporaneous understandings, agreements or representations by or among the Parties, written or oral.

5.2. Succession and Assignment. This Agreement will be binding upon and inure to the benefit of the Parties named herein and their respective successors and permitted assigns. No Party may assign either this Agreement or any of its rights, interests or obligations hereunder without the prior written approval of the other Party, but which such consent cannot be unreasonably withheld.

5.3. Counterparts. This Agreement may be executed in one or more counterparts (including by means of facsimile), each of which will be deemed an original but all of which together will constitute one and the same instrument.

5.4. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Japan without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall in no way apply to or govern this Agreement or any transactions hereunder.

5.5. Arbitration. All disputes, controversies and claims arising out of, relating to or in connection with this Agreement or the transactions contemplated hereby (including the construction, existence, validity, enforceability, enforcement, breach or termination of this Agreement) that cannot be resolved amicably by the Parties shall be exclusively, finally and conclusively settled by arbitration administered by the International Chamber of Commerce (the “ICC”) and conducted in accordance with the ICC Rules of Arbitration (the “Rules”), subject to the following: (a) there shall be a panel of three (3) arbitrators (collectively, the “Tribunal”), one appointed by ITOCHU, another by Dole and the third appointed in accordance with the Rules; (b) the seat of arbitration shall be Tokyo, Japan; (c) the arbitration shall be conducted in the English language, and all written and oral submissions and awards shall be prepared in English (or be accompanied by English translations); (d) the Tribunal shall schedule all matters regarding the arbitration so that the arbitration progresses in a timely fashion; (e) at the arbitration hearing, each Party may make written and oral presentations to the Tribunal, present testimony and written and oral evidence and examine witnesses; (f) the Tribunal may not grant any award that is inconsistent with the terms of this Agreement and shall not have the authority to use the equitable powers provided by the Rules to modify any terms of this Agreement, nor shall the Tribunal have the power to award any punitive or exemplary damages; (g) the Tribunal shall issue a written decision explaining the basis for its rulings and awards; (h) all fees and expenses of the Tribunal and the ICC shall be shared equally between the Parties, provided that the Tribunal shall have the authority to award, as part of its decision, to the prevailing Party its costs and expenses of the arbitral proceedings, including reasonable fees of attorneys and experts; and (i) any monetary award shall be made in US$ and shall be payable free of any Tax, withholding or other deduction (unless otherwise required by legal requirements). Decisions rendered by the arbitral Tribunal shall be final, binding and enforceable in any court of competent jurisdiction.

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Except as necessary to enforce or effectuate the terms of this Section or an arbitral decision or award, arbitration proceedings hereunder and any decision and award of the Tribunal shall be kept confidential by the Parties. Each Party acknowledges and agrees that the other Party would be damaged irreparably in the event any provision of this Agreement is not performed in accordance with its specific terms or otherwise is breached, so that, notwithstanding any other provision herein to the contrary, a Party shall be entitled to injunctive relief to prevent breaches of this Agreement and to enforce specifically in any court of competent jurisdiction, this Agreement and the terms and provisions hereof in addition to any other remedy to which such Party may be entitled, at law or in equity. Each of the Parties hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any legal requirement to post security as a prerequisite to obtaining equitable relief.

5.6. Amendments and Waivers. No amendment of any provision of this Agreement will be valid unless the same will be in writing and signed by DAL and Dole. No waiver by any Party of any provision of this Agreement or any default hereunder, whether intentional or not, will be valid unless the same is in writing and signed by the Party making such waiver nor will such waiver be deemed to extend to any prior or subsequent default hereunder or affect in any way any rights arising by virtue of any prior or subsequent such default.

5.7. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction will not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.

5.8. Force Majeure. Neither Party will be liable for a failure or delay in its performance under this Agreement where such failure or delay is the result of fire, flood, earthquake or other natural disaster, general Internet or network outage, act of God, riot, labor dispute, unavailability of raw materials or supplies, war, embargo, armed hostilities or acts of terrorism, any declaration of war by Congress or any other national or international emergency, the intervention of any governmental authority, or any other cause beyond the Party’s reasonable control.

5.9. Relationship of the Parties. The Parties, in performance of this Agreement, are acting as an independent contractors to each other, and not as partners, joint venturers or agents. The Parties do not intend to create by this Agreement an employer-employee relationship. Each Party retains control over its personnel, and the employees of one Party will not be considered employees of the other Party. Neither Party will be bound by any representation, act or omission of the other Party. Neither Party has any right, power or authority to create any obligation, express or implied, on behalf of the other Party.

5.10. Subcontracting. Subject to the terms and conditions of this Agreement, the Parties may use contractors, subcontractors, vendors or other third parties to provide the Products.

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5.11. Fair Labor Standards Act; Food and Drug Act. Seller guarantees that the Products subject to this Agreement supplied and sold hereunder, will be in compliance with all applicable laws including labor, environmental, health and safety laws.

Signatures Appear on Following Page

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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.

Signature Page to Mutual Supply Agreement