Annual report
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Table of Contents UNITED STATESSECURITIES AND EXCHANGE COMMISSIONWASHINGTON, D.C. 20549 FORM10-K ☒ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended September 30, 2025 OR ☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Commission File Number: 1-39093 BellRing Brands, Inc. (Exact name of registrant as specified in its charter) Delaware 87-3296749 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.) 2503 S. Hanley Road St. Louis, Missouri 63144 (Address of principal executive offices) (Zip Code) Registrant’s telephone number, including area code: (314) 644-7600 Securities registered pursuant to Section 12(b) of the Act: Title of each class Trading Symbol(s) Name of each exchange on which registered Common Stock, $0.01 par value BRBR New York Stock Exchange Securities registered pursuant to Section 12(g) of the Act: None Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☒ No ☐ Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ☐ No ☒ 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, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. Large accelerated filer ☒ Accelerated filer ☐ Non-accelerated filer ☐ Smaller reporting company ☐ Emerging growth company ☐ If an emerging growth company, 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. ☐ 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 period pursuant to §240.10D-1(b). ☐ Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒ The aggregate market value of the registrant’s Common Stock held by non-affiliates of the registrant as of March 31, 2025, the last business day of the registrant’s most recently completed second fiscal quarter, was $9,367,938,437. Number of shares of Common Stock, $0.01 par value, outstanding as of November 11, 2025: 119,672,080 DOCUMENTS INCORPORATED BY REFERENCE Certain portions of the registrant’s definitive proxy statement for its 2026 annual meeting of stockholders, to be filed with the Securities and Exchange Commission within 120 days after September 30, 2025, are incorporated by reference into Part III of this report.
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Table of Contents TABLE OF CONTENTS Cautionary Statement on Forward-Looking Statements 1 Summary of Risk Factors 3 PART I Item 1. Business 5 Item 1A. Risk Factors 13 Item 1B. Unresolved Staff Comments 30 Item 1C. Cybersecurity 31 Item 2. Properties 32 Item 3. Legal Proceedings 32 Item 4. Mine Safety Disclosures 32 PART II Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities 33 Item 6. [Reserved] 34 Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations 35 Item 7A. Quantitative and Qualitative Disclosures About Market Risk 40 Item 8. Financial Statements and Supplementary Data 41 Item 9. Changes in and Disagreements With Accountants on Accounting and Financial Disclosure 65 Item 9A. Controls and Procedures 65 Item 9B. Other Information 66 Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections 66 PART III Item 10. Directors, Executive Officers and Corporate Governance 67 Item 11. Executive Compensation 67 Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters 67 Item 13. Certain Relationships and Related Transactions, and Director Independence 67 Item 14. Principal Accountant Fees and Services 67 PART IV Item 15. Exhibits and Financial Statement Schedules 68 Item 16. Form 10-K Summary 71 Signatures 72 i
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Table of Contents CAUTIONARY STATEMENT ON FORWARD-LOOKING STATEMENTS Forward-looking statements, within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are made throughout this report, including statements regarding unanticipated developments that negatively impact our common stock. These forward-looking statements are sometimes identified from the use of forward-looking words such as “believe,” “should,” “could,” “potential,” “continue,” “expect,” “project,” “estimate,” “predict,” “anticipate,” “aim,” “intend,” “plan,” “forecast,” “target,” “is likely,” “will,” “can,” “may” or “would” or the negative of these terms or similar expressions elsewhere in this report. Our financial condition, results of operations and cash flows may differ materially from those in the forward-looking statements. Such statements are based on management’s current views and assumptions and involve risks and uncertainties that could affect expected results. Those risks and uncertainties include, but are not limited to, the following: • our dependence on sales from our ready-to-drink (“RTD”) protein shakes; • our ability to continue to compete in our product categories and our ability to retain our market position and favorable perceptions of our brands; • disruptions or inefficiencies in our supply chain, including as a result of our reliance on third-party suppliers or manufacturers for the manufacturing of many of our products, pandemics and other outbreaks of contagious diseases, labor shortages, fires and evacuations related thereto, changes in weather conditions, natural disasters, agricultural diseases and pests and other events beyond our control; • our dependence on third-party contract manufacturers for the manufacture of most of our products, including one manufacturer for nearly half of our RTD protein shakes; • the ability of our third-party contract manufacturers to produce an amount of our products that enables us to meet customer and consumer demand for the products; • our reliance on a limited number of third-party suppliers to provide certain ingredients and packaging; • significant volatility in the cost or availability of inputs to our business (including freight, raw materials, packaging, energy, labor and other supplies); • our ability to anticipate and respond to changes in consumer and customer preferences and behaviors and introduce new products; • our ability to expand existing market penetration and enter into new markets; • consolidation in our distribution channels; • the loss of, a significant reduction of purchases by or the bankruptcy of a major customer; • legal and regulatory factors, such as compliance with existing laws and regulations, as well as new laws and regulations and changes to existing laws and regulations and interpretations thereof, affecting our business, including current and future laws and regulations regarding food safety, advertising, labeling, tax matters and environmental matters; • fluctuations in our business due to changes in our promotional activities and seasonality; • our ability to maintain the net selling prices of our products and manage promotional activities with respect to our products; • ability to obtain additional financing (including both secured and unsecured debt) and our ability to service our outstanding debt (including covenants that restrict the operation of our business); • the accuracy of our market data and attributes and related information; • changes in critical accounting estimates; • uncertain or unfavorable economic conditions that limit customer and consumer demand for our products or increase our costs; • risks related to our ongoing relationship with Post Holdings, Inc. (“Post”) following our separation from Post and Post’s distribution of our stock to its shareholders (the “Spin-off”), including our obligations under various agreements with Post; • conflicting interests or the appearance of conflicting interests resulting from certain of our directors also serving as officers or directors of Post; 1
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Table of Contents • risks related to the previously completed Spin-off; • the ultimate impact litigation or other regulatory matters may have on us; • risks associated with our international business; • our ability to protect our intellectual property and other assets and to continue to use third-party intellectual property subject to intellectual property licenses; • costs, business disruptions and reputational damage associated with technology failures, cybersecurity incidents and corruption of our data privacy protections; • impairment in the carrying value of goodwill or other intangible assets or other long-lived assets; • our ability to identify, complete and integrate or otherwise effectively execute acquisitions or other strategic transactions and effectively manage our growth; • our ability to hire and retain talented personnel, employee absenteeism, labor strikes, work stoppages or unionization efforts; • our ability to satisfy the requirements of Section 404 of the Sarbanes-Oxley Act of 2002; • significant differences in our actual operating results from any guidance we may give regarding our performance; and • other risks and uncertainties included under “Risk Factors” in Item 1A of this report. You should not rely upon forward-looking statements as predictions of future events. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee that the future results, levels of activity, performance or events and circumstances reflected in the forward-looking statements will be achieved or occur. Moreover, we undertake no obligation to update publicly any forward-looking statements for any reason after the date of this report to conform these statements to actual results or to changes in our expectations. 2
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Table of Contents SUMMARY OF RISK FACTORS We are subject to a variety of risks and uncertainties, including industry and operating risks, financial and economic risks, legal and regulatory risks, risks related to our relationship with Post, risks related to ownership of our Common Stock and certain general risks, which could have a material adverse effect on our business, financial condition, results of operations and cash flows. Risks that we deem material are described in Item 1A, “Risk Factors” of this report. These risks include, but are not limited to, the following: • A substantial amount of our net sales comes from our RTD protein shakes, and a decrease in sales of our RTD protein shakes would adversely affect our business, financial condition, results of operations and cash flows. • We operate in a category with strong competition. • Disruption of our supply chain and changes in weather conditions could have an adverse effect on our business, financial condition, results of operations and cash flows. • We are dependent on third-party contract manufacturers for the manufacture of most of our products, including one manufacturer for nearly half of our RTD protein shakes. Our business could suffer if we do not continue to contract with key third-party manufacturers or as a result of a third-party contract manufacturer’s inability to produce our products for us in the quantities required, on time or to our specifications. • Our reliance on a limited number of suppliers for certain equipment, ingredients and packaging materials, the price and availability of ingredients and packaging materials, higher freight costs and higher energy costs could negatively impact our business, financial condition, results of operations and cash flows. • We must identify changing consumer and customer preferences and behaviors and develop and offer products to meet these preferences. • Our results may be adversely impacted if consumers do not maintain favorable perceptions of our brands. • Uncertain or unfavorable economic conditions, including during periods of high inflation, could limit consumer and customer demand for our products, increase our costs or otherwise adversely affect us. • Our sales and profit growth are dependent upon our ability to expand existing market penetration and enter into new markets. • Consolidation in our distribution channels, and competitive, economic and other pressures facing our customers, may hurt our profit margins. • Loss of, a significant reduction of purchases by or bankruptcy of a major customer may adversely affect our business, financial condition, results of operations and cash flows. • Violations of laws or regulations by us or our third-party contract manufacturers, as well as new laws or regulations or changes to existing laws or regulations, could adversely affect our business. • Fluctuations in our business due to changes in our promotional activities and seasonality may have an adverse impact on our financial condition, results of operations and cash flows. • We have substantial debt, which could have a negative impact on our financing options and liquidity position and could adversely affect our business. • Our borrowing costs and access to capital and credit markets could be adversely affected by a downgrade or potential downgrade of our credit ratings. • United States and global capital and credit market issues, including those that have arisen as a result of heightened inflation, could negatively affect our liquidity, increase our costs of borrowing and disrupt the operations of our suppliers and customers. • We have overlapping directors and management with Post, which may lead to conflicting interests or the appearance of conflicting interests. • Our certificate of incorporation and bylaws and provisions of Delaware law may discourage or prevent strategic transactions, including a takeover of us, even if such transaction would be beneficial to our stockholders. • We may be responsible for United States federal tax liabilities that relate to the Spin-off. • If all or a portion of the Spin-off does not qualify as a tax-free transaction for any reason, including because any of the factual statements or representations in the legal opinions are incomplete or untrue, Post may recognize a substantial 3
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Table of Contents gain for U.S. federal income tax purposes, and we may incur indemnification or other liabilities to Post as a result. • Pending and future litigation and claims may impair our reputation or lead us to incur significant costs. • Our international operations subject us to additional risks. • Our intellectual property rights are valuable and any inability to protect them, or termination of our material intellectual property licenses, could reduce the value of our products and brands and have a material adverse effect on our business. • Technology failures, cybersecurity incidents and corruption of our data privacy protections could disrupt our operations and negatively impact our business. • Impairment in the carrying value of intangible assets or other long-lived assets could negatively impact our financial condition and results of operations. If our goodwill or other intangible assets or other long-lived assets become impaired, we will be required to record impairment charges, which may be significant. • If we pursue acquisitions or other strategic transactions, we may not be able to successfully consummate favorable transactions or successfully integrate acquired businesses. • Actual operating results may differ significantly from our guidance and our forward-looking statements. • We may not be able to operate successfully if we are unable to recruit, hire, retain and develop key personnel and a qualified and diverse workforce. In addition, temporary workforce disruptions or the inability of our employees to safely perform their jobs for any reason, including as a result of illness, could adversely impact our business, financial condition, results of operations and cash flows. Additional risks and uncertainties not presently known to us or that we currently deem immaterial also may impair our business, financial condition, results of operations and cash flows. 4
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Table of Contents PART I ITEM 1. BUSINESS General BellRing Brands, Inc. (formerly known as BellRing Distribution, LLC) (“BellRing”) was formed in the State of Delaware on October 20, 2021 as a wholly-owned subsidiary of Post Holdings, Inc. (“Post”) for the purpose of effecting the separation of BellRing Intermediate Holdings, Inc. (formerly known as BellRing Brands, Inc.) (“Old BellRing”) from Post. Under a transaction agreement and plan of merger (the “Transaction Agreement”) that we entered into on October 26, 2021 and amended as of February 28, 2022, with Post, Old BellRing and our subsidiary BellRing Merger Sub Corporation (“Merger Sub”), Post distributed approximately 80.1% of its interest in us to Post’s shareholders and Merger Sub merged with and into Old BellRing, with Old BellRing surviving and becoming our subsidiary. On March 10, 2022, as a result of the completion of the transactions provided for under the Transaction Agreement (including the “Separation” and “Distribution”, each defined below), we became a new public holding company and the successor registrant to Old BellRing. In this report, we refer to the transactions undertaken pursuant to the Transaction Agreement as the “Spin-off.” The Spin-off is described in more detail below. Our Company We are a leader in the global convenient nutrition category, aiming to enhance the lives of our consumers by providing them with nutritious, great-tasting products they can enjoy throughout the day. Our primary brands, Premier Protein and Dymatize, target a broad range of consumers and compete in all major product forms, including ready-to-drink (“RTD”) protein shakes and powders. Our products are distributed across a diverse network of channels including club, food, drug and mass (“FDM”), eCommerce, specialty and convenience. We have organically grown our net sales from $1,666.8 million in our year ended September 30, 2023 to $2,316.6 million in our year ended September 30, 2025. Over the same period, net earnings increased from $165.5 million in our year ended September 30, 2023 to $216.2 million in our year ended September 30, 2025. The Spin-off Pursuant to the Transaction Agreement and in connection with a series of corporate separation transactions, on March 9, 2022, Post contributed to us (i) all of its nonvoting common units of BellRing Brands, LLC (“BellRing LLC”) and its sole outstanding share of Old BellRing’s Class B common stock, $0.01 par value per share (the “Old BellRing Class B Common Stock” and with Old BellRing’s Class A common stock, $0.01 par value per share (the “Old BellRing Class A Common Stock”), collectively, the “Old BellRing Common Stock”)) and (ii) $550.4 million in cash, in exchange for Post’s right to receive $840.0 million in aggregate principal amount of our 7.00% Senior Notes due 2030 and limited liability company interests in us (prior to our conversion to a Delaware corporation, as described below). On March 10, 2022, we converted into a Delaware corporation and changed our name to “BellRing Brands, Inc.”, and Post distributed an aggregate of 78.1 million, or 80.1%, of its shares of our common stock, $0.01 par value per share (the “BellRing Common Stock”) to its shareholders in a pro-rata distribution (the “Distribution”). Post shareholders received 1.267788 shares of BellRing Common Stock for every one share of Post common stock held as of the record date for the Distribution. No fractional shares of BellRing Common Stock were issued, and instead, cash in lieu of any fractional shares was paid to Post shareholders. Also on March 10, 2022, upon completion of the Distribution, Merger Sub merged with and into Old BellRing (the “Merger”), with Old BellRing continuing as the surviving corporation and becoming our wholly-owned subsidiary. Under the Merger, each outstanding share of Old BellRing Class A Common Stock was converted into one share of BellRing Common Stock and $2.97 in cash, resulting in $115.5 million in total consideration paid to Old BellRing Class A common stockholders pursuant to the Merger. As a result of the Spin-off, we became the new public parent company of, and successor issuer to, Old BellRing, and shares of our BellRing Common Stock were deemed to be registered under Section 12(b) of the Exchange Act, pursuant to Rule 12g-3(a) promulgated thereunder. Immediately following the Spin-off, Post owned approximately 14.2% of BellRing Common Stock and the former holders of Old BellRing Class A Common Stock owned approximately 28.5% of BellRing Common Stock. As a result of the Spin-off, the dual class voting structure of Old BellRing was eliminated. As of both September 30, 2025 and 2024, Post had no ownership of BellRing Common Stock. Unless otherwise indicated or the context otherwise requires, all references in this report to “BellRing,” “we,” “our,” “us,” “the Company” and “our Company” refer to (1) Old BellRing and its consolidated subsidiaries during the periods prior to the 5
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Table of Contents completion of the Spin-off, including BellRing LLC, Premier Nutrition Company, LLC (“Premier Nutrition”), Dymatize Enterprises, LLC (“Dymatize”), Supreme Protein, LLC (“Supreme Protein”), the PowerBar brand and Active Nutrition International GmbH (“Active Nutrition International”) and (2) us and our consolidated subsidiaries during the periods subsequent to the Spin-off, including, BellRing LLC, Premier Nutrition, Dymatize, Supreme Protein, Active Nutrition International and Premier Nutrition Canada, Inc., in each case, unless otherwise stated or the context otherwise indicates. Our History prior to the Spin-off Prior to completion of the Spin-off, and subsequent to Old BellRing’s initial public offering (the “Old BellRing IPO”), which was completed in October 2019, our subsidiary BellRing LLC was the holder of Post’s active nutrition business, which had been comprised of Premier Nutrition, Dymatize, the PowerBar brand and Active Nutrition International. The members of BellRing LLC were Post and Old BellRing. Old BellRing held the voting membership unit of BellRing LLC (which represented the power to appoint and remove the members of the board of managers of BellRing LLC and no economic interest). Post held one share of the Old BellRing Class B Common Stock, which represented 67% of the voting power of the common stock of Old BellRing, with the holders of Old BellRing Class A Common Stock holding 33% of the voting power. Immediately prior to completion of the Spin-off, Post owned 71.5% of the economic interests in BellRing LLC, and Old BellRing (and, indirectly, the holders of the Old BellRing Class A Common Stock) owned 28.5% of the economic interests in BellRing LLC. Old BellRing, as a holding company, had no material assets other than its ownership of BellRing LLC units and its indirect interests in the subsidiaries of BellRing LLC. Post had acquired the businesses that comprised its active nutrition business in a series of transactions during 2013, 2014 and 2015. In its fiscal year ended September 30, 2013, Post acquired Premier Nutrition Corporation, which, at the time, was a marketer and distributor of high-quality protein shakes and nutrition bars under the Premier Protein brand and nutritional supplements under the Joint Juice brand. Effective September 30, 2019, Premier Nutrition Corporation converted to a limited liability company and changed its corporate name to Premier Nutrition Company, LLC. In its fiscal year ended September 30, 2014, Post acquired Dymatize, which, at the time, was a manufacturer and marketer of high- quality protein powders and nutritional supplements under the Dymatize brand and nutrition bars under the Supreme Protein brand. In its fiscal year ended September 30, 2015, Post acquired the PowerBar brand and Active Nutrition International (then known as Powerbar Europe GmbH). The PowerBar brand was founded in 1986. Our Organizational Structure As a result of the Spin-off: • We became the new public parent company of, and successor issuer to, Old BellRing, and shares of our BellRing Common Stock were deemed to be registered under Section 12(b) of the Exchange Act, pursuant to Rule 12g-3(a) promulgated thereunder. • Old BellRing is our wholly-owned subsidiary. • All of our membership interests in BellRing LLC were contributed to Old BellRing and Old BellRing is the sole equity member of BellRing LLC. Immediately following the Spin-off, Post owned 19,397,339 shares, or approximately 14.2%, of BellRing Common Stock. On August 11, 2022, Post disposed of 14,800,000 shares of BellRing Common Stock, and on November 25, 2022, Post disposed of its remaining 4,597,339 shares of BellRing Common Stock. Post had no ownership of BellRing Common Stock as of September 30, 2025 or 2024. See “Risk Factors” included in Item 1A of this report and Notes 1 and 13 within “Notes to Consolidated Financial Statements” included in Item 8 of this report for more information about the Spin-off. Our Industry We operate in the global convenient nutrition category, a rapidly-growing and on-trend category within the food and beverage industry. The U.S. is our primary market and is the largest and most developed market in the world for our category. We believe the U.S. convenient nutrition category can be broken down into four key consumer need states as defined by our management: everyday nutrition, adult nutrition, sports nutrition and weight management. While we believe most brands in the convenient nutrition category are positioned to appeal to consumers primarily in one need state, Premier Protein has developed brand equities and product value propositions to appeal to a broad range of consumer need states. We primarily compete in the everyday nutrition and sports nutrition consumer need states, but also appeal to the adult nutrition and weight management consumer need states. We define everyday nutrition as nutritious products that can be 6
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Table of Contents consumed throughout the day as part of a healthy lifestyle. Our Dymatize brand is focused primarily on sports nutrition, which we define as consumers looking to supplement sports endurance and strength training needs. Brand Overview Our primary brands, based on fiscal 2025 sales, are Premier Protein and Dymatize. Together our brands cover the major product forms in the convenient nutrition category and appeal to a broad range of consumer need states. Our percentage of net sales by brand for our year ended September 30, 2025 were as follows: Premier Protein, 85.9%; Dymatize, 12.1%; and other, 2.0%. Two product forms accounted for the substantial majority of our fiscal 2025 net sales. In our year ended September 30, 2025, RTD protein shakes were 81.7% of our net sales, and powders were 15.8% of our net sales. Premier Protein Our largest brand, Premier Protein, is a leading mainstream, lifestyle brand. Premier Protein’s product portfolio consists primarily of RTD protein shakes and protein powders. Premier Protein’s flagship RTD protein shakes are available in diverse flavors and contain 30 grams of protein and 160 calories. They are gluten- and soy-free, low in sugar and fat and fortified with vitamins and minerals. Our RTD protein shakes are formulated to deliver great-tasting, leading protein levels while maintaining one of the leanest nutritional profiles in the category (as measured by sugar and calorie content). Premier Protein’s powder portfolio consists primarily of 100% whey protein products. We believe the product profile appeals to consumers across age ranges in all four need states. Dymatize Our Dymatize brand is a market leader targeting fitness enthusiasts who value the brand for its science-based product development, athletic performance focus and great taste. The brand’s portfolio includes an assortment of sports nutrition products, including protein powders. The majority of Dymatize’s sales are generated through protein powders. Our protein powder portfolio consists of three primary products: ISO.100 made with hydrolyzed 100% Whey Protein Isolate, Elite 100% Whey and Super Mass Gainer. ISO.100, the brand’s flagship product, has a global reach with sales in more than seventy-five countries. In addition to ISO.100, Dymatize offers a suite of products to meet the needs of athletes. Our Customers Our customers are predominantly club stores, FDM retailers, online retailers, specialty retailers, convenience stores and distributors. We sell our products domestically and in more than ninety countries globally. Our U.S. business represented 88.1% of our net sales in our year ended September 30, 2025, and our international business represented 11.9% of our net sales in our year ended September 30, 2025. Our largest customers, Walmart (which includes its affiliates, including Sam’s Club), Costco and Amazon, accounted for approximately 74.0% of our net sales in our year ended September 30, 2025. No other customer accounted for more than 10% of our fiscal 2025 net sales. Sales, Marketing and Distribution In the U.S., we utilize a direct sales force in multiple channels, including club, FDM, specialty and eCommerce. We also sell through a broker network for customers in the convenience and regional grocery channels, and through distributors for the foodservice and military channels. In international markets, we sell our products through a combination of direct sales to retailers and to third-party distributors. We utilize a direct sales force in key markets in Western Europe for multiple channels, including specialty, FDM and eCommerce. We also sell through distributors in the specialty channel. We maintain a dedicated multi-faceted and consumer-driven marketing strategy for each of our primary brands, tailoring initiatives to each brand’s target audience. Each of our brands maintains a presence across all major social media platforms. Premier Protein. Premier Protein’s marketing strategy is aimed at accelerating the brand’s positioning as a lifestyle brand for mainstream consumers. Premier Protein’s marketing initiatives are focused on increasing awareness to drive product trial and adoption as well as expanding household penetration among this group of consumers. Premier Protein employs a broad media strategy, which includes digital media, search marketing, television, in-store marketing and demos and online dedicated programming. As part of its marketing strategy, Premier Protein leverages its fans’ enthusiasm for the brand to spread the word of our products. The brand utilizes an influencer marketing program called “Premier Shakers” that leverages Brand Ambassadors — a collection of micro-influencers and content creators - to create social content, community, and awareness for the brand. Dymatize. Dymatize’s marketing strategy is focused on retailer-specific programs, online and specialty print media and social media. Social media is a high-touch medium that resonates with Dymatize’s core fitness-focused consumers. The brand 7
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Table of Contents also utilizes a social media influencer model, the “Squad,” engaging with athletes. This team promotes product usage via personal social media channels to drive awareness for the brand among its target demographic. Our products are distributed through a network of third-party common carriers. Research and Development We continue to improve and expand our product offerings with new flavors, ingredients, packaging, product forms and process development technologies. We leverage our dedicated market research, consumer insights and innovation teams, supplemented by leading design firms, product development companies, third-party flavor houses and consultants. Supply Chain Raw Materials. Raw materials used in our business consist of ingredients and packaging materials purchased from local, regional and international suppliers. Our principal ingredients include milk-based, whey-based and soy-based proteins, protein blends, sweeteners and vitamin and mineral blends. Our primary packaging materials include aseptic foil and plastic lined cardboard cartons, flexible and rigid plastic film and containers, beverage packaging and corrugate. We purchase our raw materials in accordance with rigorous standards to assure food quality and safety. Supply availability and prices paid for raw materials can fluctuate widely due to external factors, such as economic climate, commodity market prices, pandemics and other outbreaks of contagious diseases, weather conditions, labor disputes, governmental programs, regulations and trade and tariff policies, industry consolidation, energy shortages, transportation delays, currency fluctuations and other unforeseen circumstances. During fiscal 2025, inflationary pressures on milk-based protein costs eased while whey-based protein costs and other costs, such as packaging and manufacturing, continued to face inflationary pressures. We continuously monitor supply and cost trends of these raw materials to enable us to obtain ingredients and packaging needed for our products. Under the terms of an agreement with our largest protein powder supplier, Premier Nutrition is required to purchase a minimum periodic volume of protein powder and has the right (but not the obligation) to order quantities in excess of such minimum amount provided the supplier has the capacity and the ability to produce such additional quantities. The agreement also contains detailed provisions regarding the product specifications and quality standards for the raw materials to be provided by the supplier, the rights of a party in the event the other party does not comply with its obligations under the agreement and other customary contractual terms and conditions. The agreement expires on June 30, 2028. Energy. Electricity and steam are used in the facilities that manufacture our products. In addition, considerable amounts of diesel fuel are used in connection with the distribution of our products. Manufacturing. We primarily engage third-party contract manufacturers in North America and the European Union (the “E.U.”). to produce our products. We receive products from our third-party contract manufacturers for an agreed-upon tolling charge for each item produced as well as other costs, sometimes including capital reimbursement. Most of our relationships with our third-party contract manufacturers include minimum volume commitments, whereby the third-party contract manufacturer has committed to produce, and we have committed to purchase, a minimum quantity of product. We own a manufacturing plant in Voerde, Germany that supplies nutrition bars and gels primarily for the E.U., Switzerland and the United Kingdom (the “U.K.”). We regularly monitor the capacity and performance of our third-party contract manufacturing partners and suppliers and qualify new contract manufacturing partners and suppliers as needed. Given the growth profile of our primary products, we continuously plan for incremental capacity, including expanding production with our existing third-party contract manufacturing partners in fiscal 2025, and review additional strategic alternatives to support our business. From three separate and geographically diverse manufacturing locations, our largest third-party contract manufacturer provided approximately 46.3% of our Premier Protein RTD shake supply for our year ended September 30, 2025. Under the terms of a manufacturing agreement with the third-party contract manufacturer, Premier Nutrition is required to purchase a minimum quarterly order volume of RTD protein shakes and has the right (but not the obligation) to order quantities in excess of a monthly minimum amount provided the third-party contract manufacturer has the capacity and the ability to produce such additional quantities. In addition, under the terms of the manufacturing agreement, the third-party contract manufacturer has committed to produce a quarterly minimum volume of RTD protein shakes. The manufacturing agreement also contains detailed provisions regarding the product specifications and quality standards for the products to be manufactured and packaged by the third-party contract manufacturer, the tolling charges for each item produced (and certain other costs) to be paid by Premier Nutrition (and related payment terms), shipping and storage obligations, the rights of a party in the event the other party does not comply with its obligations under the manufacturing agreement and other customary contractual terms and conditions. This agreement expires on December 31, 2030. We regularly evaluate our contract manufacturing arrangements to ensure the cost-effective manufacturing of our products. We select our manufacturing partners based on expertise, quality, cost and location. Our quality assurance team frequently monitors manufacturing partners to ensure our partners meet our rigorous processing and quality standards, detailed in our 8
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Table of Contents Quality Expectations Manual, including requirements for third-party certification of Good Manufacturing Practices. Our owned production plant in Voerde, Germany is additionally certified to one of the international Food Safety Standards (FSSC 22.000, IFS or BRC), SMETA 4- pillars (Labour, Environment, Health and Safety, Business Ethics) and ISO 45001 (Health and Safety). Distribution. In North America, our products typically are shipped directly from our third-party contract manufacturers to a network of third-party warehouses. Products are distributed from third-party warehouses to customer distribution centers or retail stores or are exported by our distribution partners to international customers. Occasionally, we ship products directly from our third-party contract manufacturers to our customers’ distribution centers. We maintain one third-party warehouse location in Germany, which receives products from our production facility located in Voerde, Germany or directly from our third-party contract manufacturers. Our branded products are distributed from third-party warehouses to customer distribution centers or retail stores or are exported to international customers. Competition The convenient nutrition category in which we operate is highly competitive and highly sensitive to both pricing and promotion. We compete with other brands, including private label and store brand products, and with many nutritional food and beverage players. We have numerous competitors of varying sizes, including manufacturers of other branded food and beverage products, as well as manufacturers of private label products. Some of our competitors have substantially more financial, marketing and other resources than us. Competition in our industry is based on, among other things, product quality, taste, functional benefits, nutritional value and ingredients, convenience, brand loyalty and positioning, product variety, product packaging, shelf space, price, promotional activities and the ability to identify and satisfy dynamic, emerging consumer preferences. Our principal strategies for competing in our industry include strong and impactful marketing to build awareness of our products, effective customer relationship management, category insights, superior product quality and food safety, product innovation, an efficient supply chain and competitive pricing. We expect the industry we operate in to remain highly competitive for the foreseeable future. Seasonality We experience seasonal fluctuations in our net sales and earnings before interest, taxes, depreciation and amortization (“EBITDA”) because of consumer spending patterns and timing of our key retailers’ promotional activity. Historically, our first fiscal quarter is seasonally low for net sales for all brands driven by a slowdown of consumption of our products during the holiday season. Sales are typically higher throughout the remainder of the fiscal year as a result of stronger consumer demand in the second quarter of our fiscal year, promotional activity at key retailers and organic growth of the business. Seasonal fluctuations in our net sales and EBITDA may not be the same in the future as they have been historically. Trademarks and Intellectual Property We own or have licenses to use a number of trademarks that are critical to the success of our business. Our key trademarks include BellRing®, BellRing Brands®, Premier Protein®, Premier Nutrition®, Dymatize® and ISO.100®, each of which we own, as well as trademarks that we license from third parties, such as Pebbles® and Dunkin®. Our owned trademarks are, in most cases, protected through registration in the U.S. or Germany, as well as in many other countries where the related brands or products are sold. We also own, or have applications pending, for patents in the U.S. and other countries. While our patent portfolio as a whole is material to our business, no one patent or group of related patents is material to our business. In addition, we have copyrights, proprietary trade secrets, technology, know- how processes and other intellectual property rights that are not registered. We rely on a combination of trademark law, copyright law, trade secrets, non-disclosure and confidentiality agreements and provisions in agreements and other measures to establish and protect our proprietary rights to our products, packaging, processes and intellectual property. Governmental Regulation and Environmental Matters We are subject to regulation by federal, state and local governmental entities and agencies in the U.S., as well as similar regulations in Canada, Mexico, Europe and other international locations, including food safety laws, labor and employment laws, laws governing advertising, privacy laws, consumer protection regulations, worker health and safety regulations, environmental laws and regulations and other laws and regulations. Our products are regulated in the U.S. either as food or dietary supplements, which internationally may be regulated as pharmaceuticals or other health food categories. As a producer and distributor of goods for human consumption, we must comply with stringent production, storage, recordkeeping, distribution, packaging, labeling and marketing standards established by the Food and Drug Administration (the “FDA”), the U.S. Department of Agriculture (the “USDA”), the Federal Trade Commission and state and local agencies in the U.S. We also must comply with standards established by similar regulatory agencies in Canada, Mexico, the E.U. and elsewhere. In addition, some of our products are produced and marketed under 9
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Table of Contents contract as part of special certification programs such as organic, kosher or non-GMO, and must comply with the strict standards of federal, state and third-party certifying organizations. Products that do not meet regulatory or third-party standards may be considered adulterated or misbranded and subject to withdrawal or recall. Additionally, following the adoption of the Food Safety Modernization Act in the U.S. and the Safe Foods for Canadians Act in Canada, the FDA and the Canadian Food Inspection Agency continue to implement additional regulations focused on prevention of food contamination, more frequent inspection of high-risk facilities, increased record-keeping and improved tracing of food. Our manufacturing facility in Germany is subject to certain safety regulations, including the German Occupational Safety and Health Regulation. These regulations require us to comply with certain manufacturing safety standards to protect our employees from accidents. Additionally, some of the food commodities on which our business relies are subject to governmental agricultural programs (e.g., subsidies and import/export regulations), which have substantial effects on the prices and supplies of these commodities. In addition, our operations are subject to various federal, state and foreign laws and regulations regarding data privacy, data protection and data security, including the General Data Protection Regulation, the E.U.’s retained law version of the General Data Protection Regulation, the E.U.-U.S. Data Privacy Framework and the California Consumer Privacy Act, as amended by the California Privacy Rights Act, each of which applies to certain aspects of our business and regulate how businesses collect, use and protect personal information obtained from data subjects. As a company with international operations, we also are subject to laws, rules and regulations in the U.S. and other countries related to anti-corruption, antitrust and competition and economic sanctions. Our business also is subject to various federal, state and local laws and regulations with respect to environmental matters, including air quality, wastewater and storm water management, waste handling, recycling and disposal and other regulations intended to protect public health and the environment. In the U.S., the laws and regulations include the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act and the California Safe Drinking Water and Toxic Enforcement Act (“Proposition 65”), among others. Internationally, our operations, including our manufacturing facility in Germany, are subject to local and national regulations similar to those applicable to us in the U.S. We have made, and will continue to make, expenditures to ensure compliance with environmental regulations. Human Capital We have approximately 530 employees as of November 1, 2025. Of these employees, approximately 350 are in the U.S., approximately 170 are in Germany and approximately 10 are in other countries. Our people are critical to our success and we prioritize providing a safe, rewarding and respectful workplace where our people are provided with opportunities to pursue career paths based on capabilities, performance and mindset. We adhere to our Code of Conduct, which sets forth a commitment to our stakeholders, including our employees, to operate with integrity and mutual respect. Health and Safety We are committed to maintaining a healthy and safe workplace for our employees. In our Voerde, Germany manufacturing facility, we have a comprehensive safety and risk management system in place that incorporates rigorous safety standards and practices, employee and leadership training to ensure consistent implementation of our safety protocols and periodic internal and external audits to evaluate our compliance with these policies. Talent Acquisition, Development, Engagement and Retention Acquiring, developing, engaging and retaining a talented workforce is key to accomplishing our goals and achieving business results. Our talent acquisition processes include employee training on interview skills and processes to improve our candidate selection process. For candidate selection roundtables, we have a trained, disinterested employee sit in to help mitigate any instances of bias of any form in the selection discussion. Providing development opportunities and resources for our employees is another key factor in our human capital strategy. We offer a variety of training and development programs and platforms for employees at all levels of our organization, including monthly development trainings for all employees along with separate interactive trainings for people leaders of all levels. We check in with our employees through regular engagement surveys, small group and one-on-one discussions, and then we act on those survey and discussion results, as appropriate. Employee-led groups, opportunities to participate in informal wellness activities and philanthropic work are informed by what issues our employees identify as important to them. We measure our progress and take additional actions, as needed. We communicate transparently with our employees about the organization to keep our employees informed and highly engaged. 10
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Table of Contents Several times a year, we connect our newer employees to our values and culture by conducting two-day in-person workshops where they can learn about, discuss and engage with these topics to more fully appreciate our unique culture. In addition, we invite esteemed speakers to our Emeryville offices and partner with outside experts to engage our employees in an interactive workshop format to further drive engagement with timely workplace initiatives. We strive to develop and implement compensation and benefits policies and programs that support our business goals, benchmark and maintain competitiveness, promote shared fiscal responsibility among the Company and our employees, strategically align talent within our organization and reward performance, while also managing the costs of such policies and programs. We provide our employees with competitive fixed and/or variable pay and, for eligible employees, we currently provide access to medical, dental and life insurance benefits, disability coverage, a 401(k) plan and employee assistance programs - including mental health - among other benefits. Belonging We foster a culture of belonging where everyone is able to do the best work of their professional lives and where each individual feels connected to our company purpose and values, as well as each other. We also provide interactive anti-harassment training for both supervisory and non-supervisory employees taught by outside experts. Our Board of Directors receives periodic updates regarding our belonging efforts. Environmental, Social and Governance We recognize the importance of Environmental, Social and Governance (“ESG”) issues for all of our stakeholders and we are committed to incorporating ESG principles into our business strategies and organizational culture. The Audit Committee of our Board of Directors provides direction with respect to the evolving priorities of our ESG initiatives and receives quarterly reports with respect to the progress the Company is making against its objectives. We have an Executive Sustainability Steering Committee comprised of senior leaders within our organization, which provides guidance on goals and strategies and makes recommendations on disclosure and reporting guidelines. We also have a Sustainability Operations Committee comprised of technical experts within key business functions that meets regularly to implement programs and track progress on key objectives. We report to our stakeholders with respect to the results of our ESG initiatives on an annual basis in our Impact Report. Additional Information We make available, free of charge, through our website (www.bellring.com) reports we file with, or furnish to, the Securities and Exchange Commission (the “SEC”), including our annual reports on Forms 10-K, quarterly reports on Forms 10-Q, current reports on Forms 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably practicable after we electronically file such material with, or furnish such material to, the SEC. The SEC maintains an internet site containing these reports, proxy and information statements and other information regarding issuers that file electronically with the SEC at http://www.sec.gov. Our Corporate Governance Guidelines, our Code of Conduct and the charters of the Audit and Corporate Governance and Compensation Committees of our Board of Directors also are available on our website, where they can be printed free of charge. All of these documents also are available to stockholders at no charge upon request sent to BellRing’s corporate secretary (2503 S. Hanley Road, St. Louis, Missouri 63144-2503, Telephone: 314-644-7600). The information and other content contained on our website are not part of (or incorporated by reference in) this report or any other document we file with the SEC. Information about our Executive Officers The section below provides information regarding our executive officers as of November 18, 2025: Darcy H. Davenport, age 52, has served as our President and Chief Executive Officer since September 2019 and has served as a member of our Board of Directors since the completion of our initial public offering (the “IPO”). Until the completion of the IPO, Ms. Davenport served as President of Post’s active nutrition business since October 2017 and as President of Premier Nutrition, which became a subsidiary of BellRing Inc. upon completion of our IPO, since November 2016. Ms. Davenport previously served as General Manager of Premier Nutrition from October 2014 to November 2016 and Vice President of Marketing from October 2011 to October 2014. Prior to joining Premier Nutrition, Ms. Davenport served as Director of Brand Marketing at Joint Juice, Inc., a liquid dietary supplement manufacturer, from May 2009 to October 2011, when it combined with Premier Nutrition. Ms. Davenport has served as a member of the board of directors of Blentech Corporation, a company focusing on developing custom-made, food processing solutions including equipment, integrated systems and software, since January 2010. Ms. Davenport earned her undergraduate degree from Princeton University and her MBA from New York University’s Leonard N. Stern School of Business. Paul A. Rode, age 55, has served as our Chief Financial Officer since September 2019 and serves as our principal financial officer and principal accounting officer. Mr. Rode served as Chief Financial Officer of Post’s active nutrition business from 11
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Table of Contents May 2015 until the completion of our IPO and as Chief Financial Officer of Consumer Brands, a prior reporting segment of Post, from November 2014 to May 2015. Mr. Rode previously served as Vice President, Finance of Post from January 2014 to November 2014 and Vice President, Corporate Development of Post from October 2013 to January 2014. Prior to joining Post, Mr. Rode served as Vice President, Corporate Controller of Ralcorp Holdings, Inc., which was a publicly traded consumer products company and the former parent company of Post, from February 2010 to September 2013. Mr. Rode earned his undergraduate degree from the University of Kentucky and his MBA from Northwestern University’s Kellogg School of Management. Douglas J. Cornille, age 53, has served as Chief Growth Officer of Premier Nutrition, a subsidiary of ours, since November 2021. Prior to that, he served as Senior Vice President, Marketing of Premier Nutrition since July 2015. Prior to joining Premier Nutrition, Mr. Cornille was Brand Director at Clif Bar & Company, a manufacturer of various food products, from August 2011 to July 2015 and was Senior Brand Manager at Dreyer’s Grand Ice Cream Holdings, Inc., a manufacturer of ice cream and frozen yogurt, from September 2003 to August 2011. Mr. Cornille earned his undergraduate degree from Rhodes College and attended Oxford University, St. John’s College. Mr. Cornille earned his MBA from Duke University - The Fuqua School of Business. Craig L. Rosenthal, age 54, has served as our Chief Legal Officer, Chief Compliance Officer and Secretary since September 2023 and, prior to that, served as our Senior Vice President, General Counsel and Secretary since August 2019. Prior to joining BellRing, Mr. Rosenthal was an attorney at Husch Blackwell LLP from May 2019 to August 2019. From January 2018 to May 2019, while complying with the terms of a non-competition agreement entered into with a previous employer that expired in March 2019, Mr. Rosenthal provided legal counsel regarding business transactions to small businesses and individuals. Mr. Rosenthal served as Senior Vice President-Law and Assistant Secretary at Altice USA, Inc., a publicly traded broadband communications and video services provider, from June 2016 to December 2017. Prior to that, Mr. Rosenthal was Senior Vice President, General Counsel and Secretary at Cequel Communications, LLC dba Suddenlink Communications, a telecommunications and technology company, from 2005 to June 2016, when it was acquired by Altice USA, Inc. Previously, Mr. Rosenthal was an attorney at Husch & Eppenberger LLC (now Husch Blackwell LLP). Mr. Rosenthal earned his undergraduate degree from the University of Missouri-Columbia and juris doctorate from Washington University School of Law. Robin Singh, age 56, has served as Senior Vice President, Operations of Premier Nutrition, a subsidiary of ours, since March 2019. Prior to joining Premier Nutrition, Mr. Singh held various senior leadership positions at Mondelez International, Inc., a publicly traded multinational snack food company, from 1996 until March 2019, including Vice President of Operations from July 2018 to March 2019, Director of Supply Chain Strategy and Supply Chain Reinvention North America from February 2016 to July 2018, and Director of Supply Planning North America from January 2014 to January 2016. Mr. Singh received his Honors Bachelor of Science from the University of Guelph, Ontario and a certificate in the Ivey Operations Program from the Richard Ivey School of Business at the University of Western Ontario. 12
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Table of Contents ITEM 1A. RISK FACTORS In addition to the information discussed elsewhere in this report, the following risks and uncertainties, some of which have occurred and any of which may occur in the future, could have a material adverse effect on our business, financial condition, results of operations and cash flows. Although the risks below are organized by heading, and each risk is described separately, many of the risks are interrelated. Additional risks and uncertainties not presently known to us or that we currently deem immaterial also may impair our business, financial condition, results of operations and cash flows. Industry and Operating Risks A substantial amount of our net sales comes from our RTD protein shakes, and a decrease in sales of our RTD protein shakes would adversely affect our business, financial condition, results of operations and cash flows. A substantial amount of our net sales is derived from our RTD protein shakes. Sales of our RTD protein shakes represented approximately 81.7% of our net sales in our year ended September 30, 2025. We believe that sales of our RTD protein shakes will continue to constitute a substantial amount of our net sales for the foreseeable future. Our business, financial condition, results of operations and cash flows would be harmed by a decline in the market for our RTD protein shakes, increased competition in the market for those products, disruptions in our ability to produce those products, whether due to manufacturer inability, supply chain failures or otherwise, or our failure or inability to provide sufficient investment to support and market those products as needed to maintain or grow their competitive position or to achieve more widespread market acceptance. We operate in a category with strong competition. The convenient nutrition category in which we operate is highly competitive. We compete with other brands in the convenient nutrition category and with many nutritional food and beverage players, as well as manufacturers of private label and store brand products. Many of our competitors offer products similar to our products, or a wider range of products than we offer, and may offer their products at more competitive prices than we do. Competition in our industry is based on, among other things, product quality, taste, functional benefits, nutritional value and ingredients, convenience, brand loyalty and positioning, product variety, product packaging, shelf space, price, promotional activities and the ability to identify and satisfy dynamic, emerging consumer preferences. Some of our principal competitors have substantially more financial, marketing and other resources than we have. A strong competitive response from one or more of our competitors to our marketplace efforts, or a shift in consumer preferences to competitors’ products, could result in us reducing pricing, increasing marketing or other expenditures or losing market share. Competitive pressures also may restrict our ability to increase our prices, including in response to cost increases. Our profits could decrease if a reduction in prices or increased costs are not counterbalanced with increased sales volume. In addition, our competitors are increasingly using social media networks and digital media platforms to advertise products. If we are unable to use social media and digital media platforms effectively to advertise our products, it could adversely affect our business, financial condition, results of operations and cash flows. Disruption of our supply chain and changes in weather conditions could have an adverse effect on our business, financial condition, results of operations and cash flows. Our ability to make, move and sell products in coordination with our suppliers, third-party contract manufacturers and distributors is critical to our success. Damage or disruption to our collective supply, manufacturing or distribution capabilities resulting from weather, freight carrier availability, any potential effects of climate change, natural disaster, pandemics or other outbreaks of contagious diseases, governmental restrictions or mandates, labor shortages, border closures, freight carrier availability, agricultural diseases, fires or evacuations related thereto, explosions, cyber incidents, terrorism, strikes or other labor unrest, repairs or enhancements at facilities manufacturing or delivering our products or other reasons could impair our ability to source inputs or manufacture, sell or timely deliver our products. During fiscal 2022, the COVID-19 pandemic impacted our operations, including causing disruptions in our supply chain. Changes in weather conditions and natural disasters, such as fires, floods, droughts, frosts, hurricanes, earthquakes, tornadoes, insect infestations and plant disease, also may affect the cost and supply of commodities used as raw materials, including milk-based, whey-based and soy-based proteins, protein blends, sweeteners and vitamin and mineral blends. Further, as we rely on a limited number of third-party suppliers to provide certain ingredients and packaging materials, and one supplier for the majority of our milk-based protein, adverse events affecting such suppliers may limit our ability to obtain such raw materials, or alternatives for these raw materials, at competitive prices, or at all. For example, for our year ended September 30, 2025, approximately 46.3% of our Premier Protein RTD shake supply came from our largest third-party contract manufacturer, with approximately 28.0% of our Premier Protein RTD shake supply manufactured at a single facility. In addition, production of the RTD protein shakes in the 11 ounce size by our third-party contract manufacturers requires packaging that we currently are sourcing from only one supplier, and equipment that our third-party contract manufacturers are currently sourcing from the same supplier. Our supply of packaging for our 11 ounce Premier Protein RTD protein shakes from this supplier comes primarily from three of its locations. Further, a majority of production of our Premier Protein RTD protein shakes in the 11.5 13
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Table of Contents ounce size are currently sourced from a single facility of a third-party contract manufacturer. Competitors can be affected differently by weather conditions and natural disasters depending on the location of their suppliers and operations. We are dependent on third-party contract manufacturers for the manufacture of most of our products, including one manufacturer for nearly half of our RTD protein shakes. Our business could suffer if we do not continue to contract with key third-party manufacturers or as a result of a third-party contract manufacturer’s inability to produce our products for us in the quantities required, on time or to our specifications. All of our RTD protein shakes and most of our other products are manufactured by independent third-party contract manufacturers. For our year ended September 30, 2025, approximately 46.3% of our Premier Protein RTD shake supply came from a single manufacturer and approximately 28.0% from a single facility of that manufacturer. Further, a majority of production of our Premier Protein RTD protein shakes in the 11.5 ounce size are currently sourced from a single facility of a third-party contract manufacturer. Although we have added additional third-party contract manufacturers of our Premier Protein RTD shakes to our third-party contract manufacturing network, if one or more of our third-party contract manufacturers is unable to meet our supply requirements, it could have a material adverse impact on our business, financial condition, results of operations and cash flows. In fiscal 2019, a former third-party contract manufacturer that we had expected to produce less than 10% of our RTD protein shakes for that year did not produce as we expected, which resulted in our termination of our agreement with it. Also, if we experience significant increases in demand for our products, as we did beginning in the second quarter of fiscal 2021 through fiscal 2023, we and these third-party contract manufacturers may not be able to obtain in a timely manner the equipment, ingredients or packaging materials required to manufacture our products and allocate sufficient capacity to us in order to meet our requirements, fill our orders in a timely manner or meet our quality standards. Further, as we did in fiscal 2022 through fiscal 2024, we may experience operational difficulties with any of these third-party contract manufacturers, such as limitations on production capacity, failure to meet our quantity requirements, including as a result of pandemics or other outbreaks of contagious diseases, increases in manufacturing costs, errors in complying with product specifications, insufficient quality control and failure to meet production deadlines. In fiscal 2022, fiscal 2023 and into fiscal 2024, we had to limit our stock-keeping units (“SKUs”) and place one or more of our products on allocation. In addition, we rely in part on our third-party contract manufacturers to maintain the quality of our products. The failure or inability of our third- party contract manufacturers to comply with the specifications and requirements of our products could result in product withdrawal or recall, which could materially and adversely affect our reputation and subject us to significant liability should the consumption of any of our products cause or be claimed to cause illness or physical harm. For example, in fiscal 2022, a third-party manufacturer that produced less than 2% of our Premier Protein RTD protein shakes initiated a recall of all products manufactured in one of its facilities, including our Premier Protein RTD protein shakes. The inability of third-party contract manufacturers to ship orders in a timely manner, in desirable quantities or to meet our safety, quality and social compliance standards or regulatory requirements could have a material adverse impact on our business, financial condition, results of operations and cash flows. Additionally, our business could be adversely affected if any of these third parties fail to comply with governmental regulations applicable to the manufacturing of our products or if any of these third parties cease doing business with us or go out of business. Certain of our relationships with these third parties are subject to minimum volume commitments, whereby the third-party contract manufacturer has committed to produce, and we have committed to purchase, a minimum quantity of product, and we or the contract manufacturer may alternatively pay the other a mostly fixed amount rather than produce or purchase the minimum quantities. Despite the minimum volume commitments, we may nonetheless experience situations where such manufacturers are unable to fulfill their minimum volume obligations under our agreements or cannot produce sufficient amounts of product to meet consumer demand. For example, due to (i) better than expected volume growth for our Premier Protein RTD shakes and Dymatize powders in fiscal 2022 and, as to Premier Protein RTD shakes in fiscal 2023, (ii) delays in production and planned incremental production capacity by our third-party contract manufacturer network and (iii) in the case of Dymatize powders, whey protein availability, our customer demand exceeded our available capacity and resulted in Premier Protein RTD shakes and Dymatize powders inventories below acceptable levels during fiscal 2021 and Premier Protein RTD shakes inventories below acceptable levels in fiscal 2022, fiscal 2023 and into fiscal 2024. If we need to replace an existing third-party contract manufacturer, our products may not be available when required on acceptable terms, or at all. Also, if demand for our products is significantly below our expectations, we may be obligated to pay penalties to our third-party contract manufacturers for failing to purchase contracted minimum purchase quantities. Our reliance on a limited number of suppliers for certain equipment, ingredients and packaging materials, the price and availability of ingredients and packaging materials, higher freight costs and higher energy costs could negatively impact our business, financial condition, results of operations and cash flows. We rely on a limited number of third-party suppliers to provide certain equipment, ingredients and packaging materials used in our business. The primary ingredients used in our business include milk-based, whey-based and soy-based proteins, protein blends, sweeteners and vitamin and mineral blends, and one supplier provides the majority of our milk-based protein. The supply and price of these ingredients are subject to market conditions and are influenced by many factors beyond our 14
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Table of Contents control, including inflation and increased demand, labor shortages, animal feed costs, weather patterns affecting ingredient production, governmental programs, regulations and trade and tariff policies and pandemics or other outbreaks of contagious diseases. Our milk-based and whey-based protein costs have increased and may continue to increase due to factors such as inflation and increased demand, labor shortages, animal feed costs, weather patterns affecting ingredient production, governmental programs and regulations and pandemics or other outbreaks of contagious diseases,. Our primary packaging materials include aseptic foil and plastic lined cardboard cartons, flexible and rigid plastic film and containers, beverage packaging and corrugate. We utilize a sole supplier for the aseptic packaging for, and our third- party contract manufacturers use equipment from the same sole supplier to manufacture, our Premier Protein RTD shakes in the 11 ounce size. Although we maintain relationships with suppliers with the objective of ensuring that we have adequate sources for the supply of such ingredients and packaging materials, increases in demand for such items, both within our industry and in general, can result in shortages and higher costs. Our suppliers may not be able to meet our delivery schedules, we may lose a significant or sole supplier, a supplier may not be able to meet performance and quality specifications and we may not be able to purchase such items at a competitive cost. Further, the supply and price of these inputs are subject to market conditions and are impacted by many factors beyond our control, including inflation and increased demand, labor shortages, weather conditions, natural disasters, governmental programs, regulations and trade and tariff policies and pandemics and other outbreaks of contagious diseases. Our freight costs have increased and may continue to increase due to factors such as inflation and increased demand, labor shortages, increased fuel costs, limited carrier availability, increased compliance costs associated with new or changing government regulations, pandemics or other outbreaks of contagious diseases. Higher prices for natural gas, propane, electricity and fuel also may increase our ingredient, production and delivery costs. Historically, the prices of certain of our raw materials, energy and other supplies used in our business have fluctuated widely. In addition, we have experienced shortages of certain of our raw materials, which result in us paying increased costs for such inputs and impact our ability to produce our products. The prices charged for our products may not reflect changes in our input costs at the time they occur, or at all. Changes in input costs have, and may in the future, limit our ability to maintain existing margins and may have a material adverse effect on our business, financial condition, results of operations and cash flows. While we try to manage the impact of increases in certain of these costs by locking in prices on quantities required to meet our anticipated production requirements, if we fail, or are unable, to hedge and prices subsequently increase, or if we institute a hedge and prices subsequently decrease, our costs may be greater than anticipated or greater than our competitors’ costs, and our business, financial condition, results of operations and cash flows could be adversely affected. Certain of our relationships with third-party ingredient and packaging suppliers are subject to minimum volume commitments, whereby the third-party supplier has committed to sell, and we have committed to purchase, minimum quantities and we or, in some cases the third- party supplier, may alternatively pay the other a mostly fixed amount rather than sell or purchase the minimum quantities. Despite the minimum volume commitments, we may nonetheless experience situations where such third-party suppliers are unable to fulfill their minimum volume obligations under our agreements or cannot provide sufficient amounts ingredients or packaging to meet consumer demand for our products. If we need to replace an existing third-party supplier, our products may not be available when required on acceptable terms, or at all. Also, if demand for our products is significantly below our expectations, we may be obligated to pay penalties to our third-party suppliers for failing to purchase contracted minimum purchase quantities. We must identify changing consumer and customer preferences and behaviors and develop and offer products to meet these preferences. Consumer and customer preferences and behaviors evolve over time due to a variety of factors. The success of our business depends on our ability to identify these changing preferences and behaviors, to distinguish between short-term trends and long-term changes in such preferences and behaviors, and to continue to develop and offer products that appeal to consumers and customers through the sales channels that they prefer. Consumer preference and behavior changes include dietary trends, attention to different nutritional aspects of foods and beverages, acceptance and the use of weight management medication, consumer in-home and on-the-go consumption patterns, preferences for certain sales channels, concerns regarding the health effects of certain foods and beverages, attention to sourcing practices relating to ingredients, animal welfare concerns, environmental concerns regarding packaging and attention to other social and governance aspects of our Company and operations. Several of our customers have announced goals to transition to recyclable, compostable or reusable packaging. These changing preferences and requirements could require us to use specially sourced ingredients and packaging types that may be more difficult to source or entail a higher cost or incremental capital investment which we may not be able to pass on to customers. Consumers are increasingly shopping through eCommerce websites and mobile commerce applications. If we are unable to effectively compete in the expanding eCommerce market or maintain the data analytics capabilities needed to generate actionable commercial insights, our business performance may be impacted, which may negatively impact our financial condition, results of operations and cash flows. 15
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Table of Contents Emerging science and theories regarding health are constantly evolving, and products or methods of eating once considered healthy may over time become disfavored by consumers or no longer be perceived as healthy. Approaches regarding healthy lifestyles also are the subject of numerous studies and publications, often with differing views and opinions, some of which may be adverse to us. The growing acceptance and use of medication to manage weight could negatively affect the demand for many types of food in general, including our products. In order to respond to new and evolving consumer and customer demands, achieve market acceptance and keep pace with new nutritional, technological and other developments, we must constantly introduce new and innovative products into the market. We may not be successful in developing, introducing on a timely basis or marketing any new or enhanced products, and specifically, the initial sales volumes for new or enhanced products may not reach anticipated levels, we may be required to engage in extensive marketing efforts to promote such products, the costs of developing and promoting such products may exceed our expectations and such products may not perform as expected. Further, certain ingredients used in our products may become negatively perceived by consumers, resulting in decreased demand for our products or reformulation of existing products to remove such ingredients, which may negatively affect taste or other qualities. Prolonged negative perceptions concerning the health implications of certain food and beverage products could influence consumer preferences and acceptance of some of our products and marketing programs. Although we strive to respond to consumer or customer preferences and social expectations, we may not be successful in these efforts. Any significant changes in consumer or customer preferences or our inability to anticipate or react, or effectively introduce new products in response, to such changes could result in reduced demand for our products, which could negatively impact our business, financial condition, results of operations and cash flows. Our results may be adversely impacted if consumers do not maintain favorable perceptions of our brands. Maintaining and continually enhancing the value of our brands is critical to the success of our business. Brand value is based in large part on consumer perceptions. Brand value could diminish significantly due to a number of factors, including our products becoming unavailable to consumers, our failure to maintain the quality of our products, the failure of our products to deliver consistently positive consumer experiences, adverse publicity about our or our suppliers’ or third-party contract manufacturers’ business practices, our products, packaging or ingredients, concerns about food safety, real or perceived health concerns regarding our products or consumer perception that we have acted in an irresponsible manner. Consumer demand for our products also may be impacted by changes in the level of advertising or promotional support. We may need to increase our marketing and advertising spending in order to maintain and increase customer and consumer awareness, protect and grow our existing market share or to promote new products, which could impact our business, financial condition, results of operations and cash flows. However, an increase in our marketing and advertising efforts may not maintain our current reputation or lead to an increase in brand awareness. Negative perceptions of the food and beverage industry as a whole, or the convenient nutrition category, may heighten attention from consumers, third parties, the media, governments, stockholders and other stakeholders to such factors and could adversely affect our brand image. The growing use of social and digital media by consumers, us and third parties increases the speed and extent that information or misinformation and opinions can be shared. Negative posts or comments about us, our brands, products or packaging or the food and beverage industry generally on social or digital media (whether factual or not) or security breaches related to use of our social media could seriously damage our brands and reputation. If we do not maintain favorable perceptions of our products and our brands, or if we experience a loss of consumer confidence in our brands, our business, financial condition, results of operations and cash flows could be adversely impacted. In addition, our success in maintaining and enhancing our brand image depends on our ability to anticipate change and adapt to a rapidly changing marketing and media environment, including our increasing reliance on social media and online, digital and mobile dissemination of marketing and advertising campaigns and the increasing accessibility and speed of dissemination of information. Furthermore, third parties may sell counterfeit or imitation versions of our products that are inferior or pose safety risks. If consumers confuse these counterfeit products for our products or have a bad experience with the counterfeit brand, they might refrain from purchasing our brands in the future, which could harm our brand image and sales. If we do not successfully maintain and enhance our reputation and brand health, then our brands, product sales, financial condition, results of operations and cash flows could be materially and adversely affected. Our sales and profit growth are dependent upon our ability to expand existing market penetration and enter into new markets. Successful growth depends on our ability to add new customers, enter into new markets, expand the number of products sold through existing customers and enhance our product portfolio. This growth includes expanding the number of our products retailers offer for sale, our product placement and our ability to secure additional shelf or retail space for our products, as well as increased access to online platforms to sell our products. The expansion of our business depends on our ability to obtain new, or expand our business with existing, customers, such as club, FDM, eCommerce, convenience and specialty customers. Our failure to successfully add new customers, enter into new markets, expand the number of products sold through existing 16
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Table of Contents customers and enhance our product portfolio could have a material adverse effect on our business, financial condition, results of operations and cash flows. Consolidation in our distribution channels, and competitive, economic and other pressures facing our customers, may hurt our profit margins. Over the past several years, our channels have undergone significant consolidations and certain customers are gaining market share. As this trend continues and such customers grow larger, they have sought, and may continue to seek, to use their position to improve their profitability through improved efficiency, lower pricing, increased reliance on their own brand name products, increased emphasis on generic and other value brands and increased promotional programs. If we are unable to respond to these requirements, our profitability or volume growth could be negatively impacted. Additionally, if any of our customers are consolidated with another entity and the surviving entity of any such consolidation is not a customer or decides to discontinue purchasing our products, we may lose significant amounts of our preexisting business with the acquired customer. Further, the economic and competitive landscape for our customers is constantly changing, such as the emergence of new sales channels, and our customers’ responses to those changes could impact our business. Consolidation in our channels also increases the risk that adverse changes to our customers’ business operations or financial performance would have a material adverse effect on us. If our products become contaminated or adulterated, or if they are misbranded or mislabeled, we might need to recall or withdraw those items and we may experience product liability claims. Selling food products, beverages and nutritional supplements involves a number of legal and other risks, including contamination, spoilage, degradation, tampering, mislabeling or other adulteration. Additionally, many of the raw materials used to make certain of our products, particularly milk-based protein, are vulnerable to spoilage and contamination by naturally occurring molds and pathogens, such as salmonella, and pests. These pathogens may survive in our products as a result of improper handling by customers or consumers. We do not have control over handling procedures once our products have been shipped for distribution. We may need to recall or withdraw some or all of our products if they become damaged, contaminated, adulterated, mislabeled or misbranded, whether caused by us or someone in our manufacturing or supply chain. For example, in fiscal 2022, a third-party manufacturer that produced less than 2% of our Premier Protein RTD protein shakes initiated a recall of all products manufactured in one of its facilities, including our Premier Protein RTD protein shakes. A recall or withdrawal could result in destruction of product ingredients and inventory, negative publicity, temporary plant closings for us or our third-party contract manufacturers, supply chain interruption, substantial costs of compliance or remediation, fines and increased scrutiny by federal, state and foreign regulatory agencies. New scientific discoveries regarding microbes and food manufacturing may bring additional risks and latent liability. Should consumption of any product cause injury, we may be liable for monetary damages as a result of a judgment against us. In addition, adverse publicity, including claims, whether or not valid, that our products or ingredients are unsafe or of poor quality, may discourage customers or consumers from buying our products or cause production and delivery disruptions. Although we have various insurance programs in place and may have rights to indemnification in certain situations, any of these events or a loss of customer or consumer confidence could have an adverse effect on our business, financial condition, results of operations and cash flows. Loss of, a significant reduction of purchases by or bankruptcy of a major customer may adversely affect our business, financial condition, results of operations and cash flows. A limited number of customer accounts represents a large percentage of our combined net sales. Our largest customers, Walmart and its affiliates (which includes Sam’s Club), Costco and Amazon, accounted for approximately 74.0% of our net sales in our year ended September 30, 2025. The success of our business depends, in part, on our ability to maintain our level of sales and product distribution through the club, FDM, eCommerce, specialty and convenience channels. The competition to supply products to these high-volume customers is intense. Currently, we do not have material long-term supply agreements with our customers, and our customers frequently reevaluate the products they carry. A decision by our major customers to decrease the amount of product purchased from us, including in response to shifts in consumer purchasing or traffic trends, sell another brand on an exclusive or priority basis or change the manner of doing business with us could reduce our revenues and materially adversely affect our business, financial condition, results of operations and cash flows. Our customers also may offer branded and private label products that compete directly with our products for retail shelf space and consumer purchases. Accordingly, there is a risk that our customers may give higher priority to their own products or to the products of our competitors. In the event of a loss of any of our large customers, a significant reduction of purchases by any of our large customers or the bankruptcy or serious financial difficulty of any of our large customers, our business, financial condition, results of operations and cash flows may be adversely affected. 17
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Table of Contents Fluctuations in our business due to changes in our promotional activities and seasonality may have an adverse impact on our financial condition, results of operations and cash flows. We periodically offer a variety of sales and promotional incentives to our customers and consumers. Our net sales and profitability are impacted by the introduction and discontinuance of such sales and promotion incentives. In addition, we have experienced and expect to continue to experience fluctuations in our quarterly results of operations due to the seasonal nature of our business. Seasonality could cause our results of operations for an interim financial period to fluctuate and not be indicative of our full year results. Seasonality also impacts relative revenue and profitability of each quarter of the year, both on a quarter-to-quarter and year-over-year basis. If we fail to effectively manage our inventories, fluctuations in business as a result of promotional activities and seasonality may have an adverse impact on our financial condition, results of operations and cash flows. Our international operations subject us to additional risks. We are subject to a number of risks related to doing business internationally, any of which could significantly harm our financial and operational performance. These risks include: • restrictions on the transfer of funds to and from foreign countries, including potentially negative tax consequences; • unfavorable changes in tariffs, quotas, trade barriers or other export or import restrictions; • unfavorable changes in local regulatory requirements that impact our ability to sell our products in that country; • unfavorable foreign exchange controls and currency exchange rates; • challenges associated with cross-border product distribution; • an outbreak of a contagious disease, which may cause us or our distributors, third-party contract manufacturers, vendors or customers to temporarily suspend our or their respective operations in the affected city or country; • increased exposure to general market and economic conditions, political and economic uncertainty and volatility and other events, including social unrest, government shutdowns, terrorist activity, acts of war and travel restrictions, outside of the U.S.; • compliance with U.S. laws and regulations affecting operations outside of the U.S., including anti-corruption regulations (such as the U.S. Foreign Corrupt Practices Act), and changes to such laws and regulations; • compliance with treaties, antitrust and competition laws, data privacy laws (including the General Data Protection Regulation and the E.U.’s General Data Protection Regulation and the E.U.-U.S. Data Privacy Framework), anti-corruption laws (including the U.K. Bribery Act), food safety and marketing laws and other regulatory requirements and a variety of other local, national and multi- national regulations and laws in multiple jurisdictions and changes to such laws and regulations; • unfavorable changes in foreign tax treaties and policies, changes in the mix of earnings in countries with differing statutory tax rates, changes in the valuation of deferred tax assets and liabilities, changes in tax laws or their interpretations or tax audit implications; • the difficulty and costs of maintaining effective data security; • the potential difficulty of enforcing intellectual property and contractual rights; • increased risk of uncollectible accounts and longer collection cycles; • unfavorable changes in labor conditions and difficulties in staffing our operations; and • the difficulty and costs of designing and implementing an effective control environment across geographic regions. Our financial performance on a U.S. dollar denominated basis is subject to fluctuations in currency exchange rates. Because we have operations and assets in foreign jurisdictions, as well as a portion of our contracts and revenues denominated in foreign currencies, and our consolidated financial statements are presented in U.S. dollars, we must translate our foreign assets, liabilities, revenues and expenses into U.S. dollars at applicable exchange rates. Consequently, fluctuations in the value of foreign currencies relative to the U.S. dollar may negatively affect the value of these items in our consolidated financial statements. Our principal currency exposures are to the Canadian dollar and the Euro. To the extent we fail to manage our foreign currency exposure adequately, we may suffer losses in value of our net investment in a foreign operation, and our business, financial condition, results of operations and cash flows may be negatively affected. 18
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Table of Contents Our market size and related estimates may prove to be inaccurate. Data for the convenient nutrition category is collected for most, but not all, channels, and as a result, it is difficult to estimate the size of the market and predict the rate at which the market for our products will grow. We estimate the market size of the convenient nutrition category, including by geography, product form and consumer need state, based, in part, upon forecasts and information obtained from independent trade associations, industry publications and surveys and other independent sources, proprietary research studies and management’s knowledge of the industry. While these estimates are made in good faith and are based on assumptions and estimates we believe to be reasonable, they may not be accurate. Our intellectual property rights are valuable and any inability to protect them, or termination of our material intellectual property licenses, could reduce the value of our products and brands and have a material adverse effect on our business. We consider our intellectual property rights, particularly our trademarks, but also our patents, trade secrets, know-how and copyrights, to be a significant and valuable asset of our business. We attempt to protect our intellectual property rights through a combination of patent, trademark, copyright and trade secret laws, as well as third-party nondisclosure, confidentiality and assignment agreements and confidentiality provisions in third-party agreements and the policing of third party misuses of our intellectual property. Our failure or inability to obtain or maintain adequate protection of our intellectual property rights, or any change in law or other changes that serve to lessen or remove the current legal protections of intellectual property, may diminish our competitiveness and could materially harm our business. We also are subject to risks associated with protection of our trademarks and other intellectual property licensed to distributors of our products and of our trade secrets to our third-party contract manufacturers. If our licensed distributors or third-party contract manufacturers fail to protect our trademarks, trade secrets and other intellectual property, either intentionally or unintentionally, our business, financial condition, results of operations and cash flows may be adversely affected. We market certain of our products pursuant to intellectual property license agreements. These licenses give us the right to use certain names, characters and logos in connection with our products and to sell the products. If we were to breach any material term of these license agreements and not timely cure the breach, the licensor could terminate the agreement. If the licensor were to terminate our rights to use the names, characters and logos for this reason or any other reason, or if a licensor decided not to renew a license agreement upon the expiration of the license term, the loss of such rights could have a material adverse effect on our business. We may not be able to effectively manage our growth, which could materially harm our business, financial condition, results of operations and cash flows. Our growth has placed, and we expect that our continued growth may place, a significant demand on our management, personnel, systems and resources. Our continued growth will require an increased investment by us in our third-party manufacturing relationships, personnel, technology, facilities and financial and management systems and controls, including monitoring and assuring our compliance with applicable regulations. We will need to integrate, train and manage a growing employee base. Unless our growth results in an increase in our revenues that is proportionate to the increase in our costs associated with this growth, our operating margins and profitability will be adversely affected. If we fail to effectively manage our growth, our business, financial condition, results of operations and cash flows could be materially harmed. Technology failures, cybersecurity incidents and corruption of our data privacy protections could disrupt our operations and negatively impact our business. We rely on information technology networks and systems to process, transmit and store operating and financial information, to manage and support a variety of business processes and activities and to comply with regulatory, legal and tax requirements. We also depend upon our information technology infrastructure for digital marketing activities and for electronic communications among our locations, personnel, customers, third-party contract manufacturers and suppliers. Our and our third-party manufacturing and distribution facilities and inventory management utilize information technology to increase efficiencies and control costs. Our and our third-party vendors’ information technology systems may be vulnerable to a variety of invasions, interruptions or malfunctions due to events beyond our or their control, including, but not limited to, natural disasters, terrorist attacks, telecommunications failures, power outages, computer viruses, ransomware and malware, hardware or software failures, cybersecurity incidents, hackers and other causes. Such invasions, interruptions or malfunctions could negatively impact our business. If we do not allocate and effectively manage the resources necessary to build and sustain the proper technology infrastructure and to maintain and protect the related automated and manual control processes, or if one of our third-party service providers fails to provide the services we require, we could be subject to billing and collection errors, business disruptions or damage resulting from such events, particularly material security breaches and cybersecurity incidents. Cyberattacks and other cyber incidents are occurring more frequently, are constantly evolving in nature, are becoming more sophisticated and are being made by groups and individuals (including criminal hackers, hacktivists, state-sponsored institutions, terrorist organizations and individuals or groups participating in organized crime) with a wide range of expertise 19
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Table of Contents and motives (including monetization of corporate, payment or other internal or personal data, theft of trade secrets and intellectual property for competitive advantage and leverage for political, social, economic and environmental reasons). If any of our significant information technology systems suffers severe damage, disruption or shutdown, including by malicious or unintentional actions of contractors or employees or by cyber or ransomware attacks, and our business continuity plans do not effectively resolve the issues in a timely manner, our product sales, financial condition, results of operations and cash flows may be materially and adversely affected, and we could experience delays in reporting our financial results. In addition, there is a risk of business interruption, litigation and reputational damage from leaks of confidential or personal information. While we have insurance programs in place related to these matters, the potential liabilities associated with such events, or those that could arise in the future, could be excluded from coverage or, if covered, could exceed the coverage provided by such programs. Although we have not detected a material security breach or cybersecurity incident to date, we have been the target of events of this nature and expect them to continue. We also are subject to an evolving body of federal, state and foreign laws, regulations, guidelines and principles regarding data privacy, data protection and data security. Several states as well as foreign governments have laws and regulations regulating how businesses collect, use and protect personal information obtained from their data subjects, including the General Data Protection Regulation, the E.U.’s retained version of General Data Protection Regulation, and the California Consumer Privacy Act, as amended by the California Privacy Rights Act, and we could incur substantial fines, other penalties or litigation related to violations of such laws and regulations. Climate change, or legal or market measures to address climate change, may negatively affect our business, reputation and operations. Increasing levels of carbon dioxide and other greenhouse gases in the atmosphere may have an adverse impact on global temperatures, weather patterns and the frequency and severity of extreme weather and natural disasters. If any of these climate changes has a negative effect on agricultural productivity, we may be subject to decreased availability or less favorable pricing for certain commodities that are necessary for our products, such as milk-based, whey-based and soy-based proteins, protein blends, sweeteners and vitamin and mineral blends. In addition, increases in the frequency and severity of extreme weather and natural disasters may result in damage and disruptions to our manufacturing operations and distribution channels or our third-party contract manufacturers’ operations, particularly where a product is primarily sourced from a single location. Also, the impacts of these climate changes may cause unpredictable water availability or exacerbate water scarcity. Water is critical to our business, and the lack of available water of acceptable quality may lead to, among other things, adverse effects on our operations. The increasing concern over climate change and related environmental sustainability matters also may result in more federal, state, local and foreign legal requirements to reduce or mitigate the effects of greenhouse gases or conserve and replenish water. If such laws are enacted, we may experience significant increases in our costs of operation and delivery. Further, our business could be adversely affected if we are unable to effectively address increased concerns from the media, stockholders and other stakeholders on climate change and related environmental sustainability and governance matters. In addition, any failure to achieve goals we may set with respect to reducing our impact on the environment or perception of a failure to act responsibly with respect to the environment can lead to adverse publicity, which could damage our reputation. As a result, climate change could negatively affect our business, financial condition, results of operations and cash flows. If we pursue acquisitions or other strategic transactions, we may not be able to successfully consummate favorable transactions or successfully integrate acquired businesses. From time to time, we may evaluate potential acquisitions or other strategic transactions. Evaluating potential transactions, including divestitures, requires additional expenditures (including legal, accounting and due diligence expenses, higher administrative costs to support the acquired entities and information technology, personnel and other integration expenses) and may divert the attention of our management from day-to-day operating matters. Companies or operations we acquire or joint ventures we enter into may not be profitable or may not achieve the anticipated profitability that justify our investments. With respect to acquisitions, we may not be able to identify suitable candidates, consummate a transaction on terms that are favorable to us or achieve expected returns and other benefits as a result of integration challenges. The successful integration of acquisitions is complex and depends on our ability to manage the operations and personnel of the acquired businesses. Potential difficulties we may encounter as part of the integration process include, but are not limited to, the following: employees may voluntarily or involuntarily separate from employment with us or the acquired businesses because of the acquisitions; our management may have its attention diverted while trying to integrate the acquired businesses; we may encounter obstacles when incorporating the acquired businesses into our operations and management; we may be required to recognize impairment charges; and integration may be more costly or more time consuming and complex or less effective than anticipated. With respect to proposed divestitures of assets or businesses, we may encounter difficulty in finding acquirers or alternative exit strategies on terms that are favorable to us, which could delay the accomplishment of our strategic objectives, or our divestiture activities may require us to recognize impairment charges. 20
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Table of Contents Our corporate development activities may present financial and operational risks and may have adverse effects on existing business relationships with suppliers and customers. Future acquisitions also could result in potentially dilutive issuances of equity securities, the incurrence of debt, contingent liabilities and depreciation and amortization expenses related to certain tangible and intangible assets and increased operating expenses, all of which could, individually or collectively, adversely affect our business, financial condition, results of operations and cash flows. Financial and Economic Risks We have substantial debt, which could have a negative impact on our financing options and liquidity position and which could adversely affect our business. We have a significant amount of debt. As of September 30, 2025, we had $1,090.0 million in aggregate principal amount of total debt. Additionally, our secured revolving credit facility has a remaining borrowing capacity of $247.6 million as of September 30, 2025. Our overall leverage and the terms of our financing arrangements could: • limit our ability to obtain additional financing in the future for working capital, capital expenditures or acquisitions, to fund growth or for general corporate purposes, even when necessary to maintain adequate liquidity, particularly if any ratings assigned to our debt securities by ratings organizations were revised downward; • make it more difficult for us to satisfy the terms of our obligations under the terms of our financing arrangements; • limit our ability to refinance our indebtedness on terms acceptable to us, or at all; • limit our flexibility to plan for and to adjust to changing business and market conditions in the industries in which we operate and increase our vulnerability to general adverse economic and industry conditions; • require us to dedicate a substantial portion of our cash flow from operations to make interest and principal payments on our debt, thereby limiting the availability of our cash flow to fund future investments, capital expenditures, working capital, business activities and other general corporate requirements; and • subject us to higher levels of indebtedness than our competitors, which may cause a competitive disadvantage and may reduce our flexibility in responding to increased competition. Our ability to pay expenses and satisfy debt service obligations will depend on our future performance, which will be affected by financial, business, economic and other factors, including the impact of pandemics and other outbreaks of contagious diseases, potential changes in consumer and customer preferences and behaviors, the success of product and marketing innovation and pressure from competitors. If we do not generate enough cash to pay our debt service obligations, we may be required to refinance all or part of our existing debt, sell assets, borrow more money or issue additional equity. Despite our level of indebtedness, we may be able to incur substantially more debt, which could further exacerbate the risks related to our debt leverage. We may be able to incur significant additional indebtedness in the future. Although the financing arrangements governing our indebtedness contain restrictions on our ability to incur additional indebtedness, these restrictions are subject to a number of qualifications and exceptions, and the additional indebtedness that may be incurred in compliance with these restrictions could be substantial. These restrictions also may not prevent us from incurring certain obligations that may not constitute indebtedness under the documents governing our indebtedness. The agreements governing our debt contain various covenants that limit our ability to take certain actions and also require us to meet financial maintenance tests, and failure to comply with these covenants could have a material adverse effect on us. Our financing arrangements contain restrictions, covenants and events of default that, among other things, require us to satisfy certain financial tests and maintain certain financial ratios and restrict our ability to incur additional indebtedness and to refinance our existing indebtedness. Financing arrangements which we enter into in the future could contain similar restrictions and additionally could require us to comply with similar, new or additional financial tests or to maintain similar, new or additional financial ratios. The terms of our financing arrangements, financing arrangements which we enter into in the future and any future indebtedness may impose various restrictions and covenants on us that could limit our ability to respond to market conditions, provide for capital investment needs or take advantage of business opportunities by limiting the amount of additional borrowings we may incur. These restrictions include compliance with, or maintenance of, certain financial tests and ratios and may limit or prohibit our ability to, among other things: borrow money or guarantee debt; create liens; pay dividends on or redeem or repurchase stock or other securities; make investments and acquisitions; enter into, or permit to exist, contractual limits on the ability of our subsidiaries to pay dividends to us; enter into new lines of business; enter into transactions with affiliates; and sell assets or merge with other companies. 21
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Table of Contents Various risks, uncertainties and events beyond our control, including the impact of pandemics and other outbreaks of contagious diseases, could affect our ability to comply with these restrictions and covenants. Failure to comply with any of the restrictions and covenants in our existing or future financing arrangements could result in a default under those arrangements and under other arrangements that may contain cross-default provisions. Our credit agreement contains a covenant that requires us to maintain a total net leverage ratio (as defined in our credit agreement) not to exceed 6.00:1.00, as measured as of the last day of each fiscal quarter. A default would permit lenders to accelerate the maturity of the debt under these arrangements and to foreclose upon any collateral securing the debt. Under these circumstances, we might not have sufficient funds or other resources to satisfy all of our obligations. In addition, the limitations imposed by financing agreements on our ability to incur additional debt and to take other actions might significantly impair our ability to obtain other financing. To service indebtedness and fund other cash needs, we will require a significant amount of cash. Our ability to generate cash depends on many factors beyond our control. Our ability to pay principal and interest on our debt obligations and to fund any planned capital expenditures and other cash needs will depend in part upon the future financial and operating performance of our subsidiaries and upon our ability to renew or refinance borrowings. Prevailing economic conditions and financial, business, our future financial and operating performance, competitive, legislative, regulatory and other factors, many of which are beyond our control, including the impact of pandemics and other outbreaks of contagious diseases, will affect our ability to make these payments. If we are unable to make payments, refinance our debt or obtain new financing under these circumstances, we may consider other options, including: sales of assets; sale of equity; reductions or delays of capital expenditures, strategic acquisitions, investments and alliances; or negotiations with our lenders to restructure the applicable debt. Our business may not generate sufficient cash flow from operations, and future borrowings may not be available to us in an amount sufficient, to enable us to pay our indebtedness or to fund our other liquidity needs. We may need to refinance all or a portion of our indebtedness on or before maturity. We may not be able to refinance any of our debt on commercially reasonable terms, or at all. Uncertain or unfavorable economic conditions, including during periods of high inflation, recessions or other economic disruption, could limit consumer and customer demand for our products, increase our costs or otherwise adversely affect us. The willingness of consumers to purchase our products depends in part on general or local economic conditions and consumers’ discretionary spending habits. For instance in each of the past four fiscal years, the U.S. experienced significantly heightened inflationary pressures. In periods of adverse or uncertain economic conditions, including during periods of high inflation or recession concerns, consumers may purchase less of our products, purchase more value or private label products or may forgo certain purchases altogether. In addition, our customers may seek to reduce their inventories in response to those economic conditions. In those circumstances, we could experience a reduction in sales. Further, during economic downturns, it may be more difficult to convince consumers to switch to, or continue to use, our brands or convince new users to choose our brands without expensive sampling programs and price promotions. Also, as a result of economic conditions, we may be unable to raise our prices sufficiently to protect profit margins. We experienced inflationary headwinds in our business during each of the past four fiscal years, and we expect certain inflationary pressures to continue into fiscal 2026. This trend could have a materially adverse impact in the future if inflation rates were to significantly exceed our ability to achieve price increases or cost savings. Further, uncertain or unfavorable economic conditions, has and could continue to negatively impact the financial stability of our customers or suppliers, which could lead to increased uncollectible receivables or non-performance. Current global geopolitical tensions, including related to Ukraine and Israel and the Middle East, may exacerbate any economic downturn and inflation. Any of these events could have an adverse effect on our business, financial condition, results of operations and cash flows. Increases in interest rates may negatively affect our earnings. From time to time, including at September 30, 2025, we have debt outstanding with exposure to variable interest rates. As a result, we have in the past been and may in the future be adversely effected by rising interest rates, which will increase the cost of servicing our financial instruments with exposure to interest rate risk and could materially reduce our profitability and cash flows. Our borrowing costs and access to capital and credit markets could be adversely affected by a downgrade or potential downgrade of our credit ratings. Rating agencies routinely evaluate us, and their ratings of our long-term and short-term debt are based upon a number of factors, including our cash generating capability, levels of indebtedness, policies with respect to stockholder distributions and financial strength generally, as well as factors beyond our control, such as the then-current state of the economy and our industry generally. Any downgrade of our credit ratings by a credit rating agency, whether as a result of our actions or factors which are beyond our control, can increase our future borrowing costs, impair our ability to access capital and credit markets on 22
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Table of Contents terms commercially acceptable to us or at all and result in a reduction in our liquidity. Our borrowing costs and access to capital markets also can be adversely affected if a credit rating agency announces that our ratings are under review for a potential downgrade. An increase in our borrowing costs, limitations on our ability to access the global capital and credit markets or a reduction in our liquidity can adversely affect our financial condition, results of operations and cash flows. U.S. and global capital and credit market issues, including those that have arisen as a result of heightened inflation and recession or other economic concerns, could negatively affect our liquidity, increase our costs of borrowing and disrupt the operations of our suppliers and customers. U.S. and global credit markets have, from time to time, experienced significant dislocations and liquidity disruptions which caused the spreads on prospective debt financings to widen considerably. These circumstances materially impacted liquidity in the debt markets, making financing terms for borrowers less attractive and in certain cases resulted in the unavailability of certain types of debt financing. In fiscal 2025, the U.S. experienced certain inflationary pressures and we expect certain inflationary pressures to continue into fiscal 2026. This and other events affecting the credit markets also have had, and may in the future have, an adverse effect on other financial markets in the U.S., which may make it more difficult or costly for us to raise capital through the issuance of common stock or other equity securities or refinance our existing debt, sell our assets or borrow money, if necessary. Our business also could be negatively impacted if our suppliers or customers experience disruptions resulting from tighter capital and credit markets or a slowdown in the general economy. Any of these risks could impair our ability to fund our operations or limit our ability to expand our business or increase our interest expense, which could have a material adverse effect on our business, financial condition, results of operations and cash flows. Impairment in the carrying value of intangible assets or other long-lived assets could negatively impact our financial condition and results of operations. If our goodwill or other intangible assets or other long-lived assets become impaired, we will be required to record impairment charges, which may be significant. Our balance sheet includes intangible assets, including goodwill, trademarks, trade names, customer relationships, other acquired intangibles and other long-lived assets. Goodwill is expected to contribute indefinitely to our cash flows and is not amortized. Our management reviews it for impairment on an annual basis or whenever events or changes in circumstances indicate that its carrying value may be impaired. Impairments to intangible assets may be caused by factors outside of our control, such as increasing competitive pricing pressures, lower than expected revenue and profit growth rates, changes in industry earnings before interest, taxes, depreciation and amortization (“EBITDA”) and revenue multiples, changes in discount rates based on changes in cost of capital (interest rates, etc.) or the loss or bankruptcy of a significant customer. These factors, along with other internal and external factors, could have a significant negative impact on our fair value determination, which could then result in a material impairment charge recorded in our results of operations. No impairments were recorded in the years ended September 30, 2025, 2024 and 2023. However, we could have impairments in the future. Unsuccessful implementation of business strategies to reduce costs, or unintended consequences of the implementation of such strategies, may adversely affect our business, financial condition, results of operations and cash flows. Many of our costs, such as raw materials, packaging, freight and energy, are outside of our control. Therefore, we must seek to reduce costs in other areas, such as through operating efficiency. If we are not able to complete projects designed to reduce costs and increase operating efficiency on time or within budget, or if the implementation of these projects results in unintended consequences, such as business disruptions, distraction of management and employees or reduced productivity, our business, financial condition, results of operations and cash flows may be adversely impacted. In addition, if the cost-saving initiatives we have implemented, or any future cost-saving initiatives, do not generate the expected cost savings and synergies, our business, financial condition, results of operations and cash flows may be adversely affected. We have incurred, and we will continue to incur, additional fees, costs and expenses to create and maintain the corporate infrastructure to operate as a public company, and we have and we will continue to experience increased ongoing costs and expenses in connection with being a public company. Prior to our IPO, our business had historically used some of Post’s corporate infrastructure and services to support our business functions. The expenses related to establishing and maintaining this infrastructure had been spread across all of Post’s businesses and charged to us on a cost-allocation basis. The services historically provided to us by Post included, but were not limited to, finance, information technology, legal, human resources, quality, supply chain and purchasing functions. Following our IPO, we continued to receive some of these services pursuant to a master services agreement with Post, and in connection with the Spin-off, we, Post, Old BellRing and BellRing LLC entered into an amended and restated master services agreement, which was further amended in fiscal 2023. Under the amended and restated master services agreement, Post continues to provide certain of the above described services, and, in general, the services to be provided by Post will continue for the periods specified in the amended and restated master services agreement, but not past March 2026, subject to any subsequent extension or earlier termination as agreed to by the parties. There can be no assurance that all of the functions provided to us by Post under the amended and restated master services agreement will be successfully executed by Post or that we will not have to 23
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Table of Contents expend significant efforts or costs materially in excess of those estimated in the master services agreement. Any interruption in these services could have a material adverse effect on our business, financial condition, results of operations and cash flows. In addition, upon termination of the amended and restated master services agreement, we will need to perform these functions ourselves or hire third parties to perform these functions on our behalf. There can be no assurance that the transition from Post to us of all of the functions provided to us by Post under the amended and restated master services agreement will be successfully executed. Specifically, effective internal control over financial reporting is necessary for us to provide reliable financial reports. If we fail to properly and efficiently transition and maintain effective internal control over financial reporting, we could fail to report our financial results accurately. Actual operating results may differ significantly from our guidance and our forward-looking statements. From time to time, we release guidance regarding our future performance. This guidance, which consists of forward-looking statements, is prepared by our management and is qualified by, and subject to, the assumptions and the other information contained or referred to in such release and the factors described under “Cautionary Statement on Forward-Looking Statements” in our current and periodic reports filed with the SEC. Our guidance is not prepared with a view toward compliance with published guidelines of the American Institute of Certified Public Accountants, and neither our independent registered public accounting firm nor any other independent expert or outside party has audited, reviewed, examined, compiled or applied agreed upon procedures with respect to the guidance and, accordingly, no such person expresses any opinion or any other form of assurance with respect thereto. The independent registered public accounting firm report included in this document relates to our historical financial statements. It does not extend to any guidance and should not be read to do so. Guidance is based upon a number of assumptions and estimates that, although presented with numerical specificity, are inherently subject to business, economic and competitive uncertainties and contingencies, many of which are beyond our control and are based upon specific assumptions with respect to future business decisions, some of which will change. We generally state possible outcomes as high and low ranges which are intended to provide a sensitivity analysis as variables are changed but are not intended to represent that actual results could not fall outside of the suggested ranges. The principal reason that we release this data is to provide a basis for our management to discuss our business outlook with analysts and investors. We do not accept any responsibility for any projections or reports published by any such persons. Guidance is necessarily speculative in nature, and it can be expected that some or all of the assumptions of the guidance furnished by us will not materialize or will vary significantly from actual results. Accordingly, our guidance is only an estimate of what management believes is realizable as of the date of release. Actual results will vary from the guidance. Investors also should recognize that the reliability of any forecasted financial data diminishes the farther in the future that the data is forecast. In light of the foregoing, investors are urged to put the guidance in context and not to place undue reliance on it. Any failure to successfully implement our operating strategy or the occurrence of any of the risks or uncertainties set forth in this report could result in actual operating results being different than the guidance, and such differences may be adverse and material. Risks Related to Our Relationship with Post We have overlapping directors and management with Post, which may lead to conflicting interests or the appearance of conflicting interests. Certain of our officers and directors also serve as officers or directors of Post. Robert V. Vitale, who serves as Chairman of our Board of Directors, also serves as an officer and director of Post. Our officers and members of our Board of Directors have fiduciary duties to our stockholders. Likewise, any such persons who serve in similar capacities at Post have fiduciary duties to Post’s shareholders. Therefore, such persons may have conflicts of interest or the appearance of conflicts of interest with respect to matters involving or affecting us and Post. In addition, some of our officers or members of our Board of Directors may own equity or options to purchase equity in Post. Such ownership interests may create, or appear to create, conflicts of interest when the applicable individuals are faced with decisions that could have different implications for us and Post. The appearance of conflicts of interest created by such overlapping relationships also could impair the confidence of our investors. Our certificate of incorporation could prevent us from benefiting from corporate opportunities that might otherwise have been available to us. Our certificate of incorporation includes certain provisions regulating and defining the conduct of our affairs to the extent that they may involve Post and its directors, officers, employees, agents and affiliates and our rights, powers, duties and liabilities and those of our directors, officers, managers, employees and agents in connection with our relationship with Post. In general, and except as may be set forth in any agreement between us and Post, these provisions provide that Post and its affiliates may carry on and conduct any business of any kind, nature or description, whether or not such business is competitive with or in the same or similar lines of business as us; Post and its affiliates may do business with any of our customers, vendors and lessors; and Post and its affiliates may make investments in any kind of property in which we may make investments. In 24
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Table of Contents addition, these provisions provide that we renounce any interest or expectancy to participate in any business of Post or its affiliates. Moreover, our certificate of incorporation provides that we renounce any interests or expectancy in corporate opportunities which become known to (i) any of our directors, officers, managers, employees or agents who also are directors, officers, employees, agents or affiliates of Post or its affiliates (except that we and our subsidiaries are not deemed affiliates of Post or its affiliates for the purposes of the provision) or (ii) Post or its affiliates. Generally, neither Post nor our directors, officers, managers, employees or agents who also are directors, officers, employees, agents or affiliates of Post or its affiliates will be liable to us or our stockholders for breach of any fiduciary duty solely by reason of the fact that any such person pursues or acquires any corporate opportunity for the account of Post or its affiliates, directs, recommends or transfers such corporate opportunity to Post or its affiliates or does not offer or communicate information regarding such corporate opportunity to us because such person has directed or intends to direct such opportunity to Post or one of its affiliates. This renunciation does not extend to corporate opportunities expressly offered to one of our directors, officers, managers, employees or agents, solely in his or her capacity as a director, officer, manager, employee or agent of us. These provisions in our certificate of incorporation will cease to apply at such time as none of the directors, officers, employees, agents or affiliates of Post serve as our directors, officers, managers, employees or agents. The corporate opportunity provision may exacerbate conflicts of interest between Post and us because the provision effectively permits one of our directors, officers, managers, employees or agents who also serves as a director, officer, employee, agent or affiliate of Post or its affiliates to choose to direct a corporate opportunity to Post or its affiliates instead of to us. We may be responsible for U.S. federal income tax liabilities that relate to the Spin-off. The completion of the Spin-off by Post was conditioned on the receipt by Post of an opinion of a nationally recognized accounting firm or law firm (the “distribution tax counsel” and, together with BellRing tax counsel, “tax counsel”) to the effect that the Separation, together with certain contributions made by Post to us, should qualify as a tax-free “reorganization” within the meaning of Sections 368(a) and 355 of the Internal Revenue Code (the “Code”) and the Distribution should qualify as a tax-free distribution eligible for nonrecognition within the meaning of Sections 355 and 361 of the Code. The completion of the Spin-off was also conditioned on the receipt by us of an opinion of BellRing tax counsel to the effect that the merger of Merger Sub with and into Old BellRing qualified as a “reorganization” within the meaning of Section 368(a) of the Code or, alternatively, as a transaction qualifying for nonrecognition of gain and loss under Section 351 of the Code. An opinion of tax counsel is not binding on the U.S. Internal Revenue Service (the “IRS”). Accordingly, the IRS may reach conclusions with respect to the distribution that are different from the conclusions reached in the opinions, and any such differing conclusions may result in U.S. federal income tax liability. The opinions were based on certain factual statements and representations, which, if incomplete or untrue in any material respect, could alter tax counsel’s conclusions. We are not aware of any facts or circumstances that would cause any such factual statements or the opinion of tax counsel to be incomplete or untrue. If all or a portion of the Spin-off does not qualify as a tax-free transaction for any reason, including because any of the factual statements or representations in the legal opinions are incomplete or untrue, Post may recognize a substantial gain for U.S. federal income tax purposes, and we may incur indemnification or other liabilities to Post as a result. Even if the Distribution otherwise qualifies as a tax-free transaction for U.S. federal income tax purposes, the Distribution will be taxable to Post (but not to Post shareholders) pursuant to Section 355(e) of the Code if there are (or have been) one or more acquisitions (including issuances), directly or indirectly (including through acquisitions of such stock after the completion of the Transactions), of our stock or the stock of Post, representing 50 percent or more, measured by vote or value, of the stock of any such corporation and the acquisition or acquisitions are deemed to be part of a plan or series of related transactions that include the Distribution. The process for determining whether an acquisition is part of a plan under these rules is complex, inherently factual in nature, and subject to a comprehensive analysis of the facts and circumstances of the particular case. In general, any acquisition of our common stock within two years before or after the Distribution (with exceptions, including public trading by less-than-5 percent stockholders and certain compensatory stock issuances) generally will be presumed to be part of such a plan unless that presumption is rebutted. The resulting tax liability would be substantial. Pursuant to a tax matters agreement with Post, we have agreed to indemnify Post for any tax liabilities resulting from such transactions or other actions we take, and Post has agreed to indemnify us for any tax liabilities resulting from transactions entered into by Post. In addition, pursuant to the tax matters agreement, if and to the extent the Distribution does not qualify as a tax-free transaction, such failure to qualify as a tax-free transaction gives rise to adjustments to the tax basis of assets held by us and our subsidiaries, and we are not required to indemnify Post for any tax liabilities resulting from such failure to qualify as a tax-free transaction, then Post will be entitled to periodic payments from us equal to 85% of the tax savings arising from the aggregate increase to the tax basis of assets held by us and our subsidiaries resulting from such failure and Post and we will negotiate in good faith the terms of a tax receivable agreement to govern the calculation of such payments applying the principles of, and adhering as closely as practicable to, the existing tax receivable agreement between Post and BellRing. Payments under such 25
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Table of Contents tax receivable agreement may be substantial, and in certain cases may be accelerated or significantly exceed the actual benefits we realize in respect of the tax attributes subject to the tax receivable agreement. Legal and Regulatory Risks Violations of laws or regulations by us or our third-party contract manufacturers, as well as new laws or regulations or changes to existing laws or regulations, could adversely affect our business. Our business is subject to a variety of laws and regulations administered by federal, state and local government authorities in the U.S., as well as government authorities outside of the U.S., including requirements related to food safety, quality, manufacturing, processing, storage, marketing, advertising, labeling, distribution, environmental and worker health and workplace safety. Our activities, both inside and outside of the U.S., are subject to extensive regulation. In the U.S., we are regulated by, and our activities are affected by, among other federal, state and local authorities and regulations, the FDA, the USDA, the Federal Trade Commission, the Occupational Safety and Health Administration and Proposition 65. In Europe, we are regulated by, among other authorities, the U.K.’s Food Standards Agency, Health and Safety Executive, Environment Agency, Environmental Health, the Information Commissioners Office and the Trading Standards Office and their equivalents in E.U. member states. We also are regulated by similar authorities elsewhere in the world where our products are distributed. Governmental regulations also affect taxes and levies, tariffs, import and export restrictions, healthcare costs, energy usage, data privacy and immigration and labor issues, any or all of which may have a direct or indirect effect on our business or the businesses of our customers, suppliers or third-party contract manufacturers. In addition, we could be the target of claims relating to alleged false or deceptive advertising under federal, state and foreign laws and regulations. We also may be impacted by changes to administrative policies, such as business restrictions, tariffs and trade agreements, in markets in which we manufacture, sell or distribute our products. The impact of current laws and regulations, changes in, or changes in interpretations of, these laws or regulations or the introduction of new laws or regulations could increase the costs of doing business for us or our customers or suppliers or third-party contract manufacturers, causing our business, financial condition, results of operations and cash flows to be adversely affected. Further, if we are found to be out of compliance with applicable laws and regulations in these areas, we could be subject to civil remedies, including fines, revocations of required licenses, detention, seizure, injunctions or recalls, as well as potential criminal sanctions, any or all of which could have a material adverse effect on our business, financial condition, results of operations and cash flows. It also is possible that federal, state, local or foreign enforcement authorities might take regulatory or enforcement action, which could result in significant fines or penalties, revocations of required licenses or injunctions, as well as potential criminal sanctions. If we are found to be significantly out of compliance, an enforcement authority could issue a warning letter and/or institute enforcement actions that could result in additional costs, substantial delays in production or even a temporary shutdown in manufacturing and product sales. Also, we may have to recall product or otherwise remove product from the market, and temporarily cease its manufacture and distribution, which would increase our costs and reduce our revenues. Any product liability claims resulting from the failure to comply with applicable laws and regulations would be expensive to defend and could result in substantial damage awards against us or harm our reputation. Any of these events would negatively impact our revenues and costs of operations. We also may be impacted by changes to administrative policies, such as business restrictions, tariffs and trade agreements, in markets in which we or our third-party contract manufacturers manufacture, sell or distribute our products. Certain of our products are subject to a higher level of regulatory scrutiny, resulting in increased costs of operations and the potential for delays in product sales. Certain of our products are regulated by the FDA as dietary supplements, which are subject to FDA regulations and levels of regulatory scrutiny different from those applicable to conventional food. Internationally, the convenient nutrition category is regulated as food and dietary supplements. Such heightened regulatory scrutiny results in increased costs of operations and the potential for delays in product sales. In addition, there is some risk that product classifications could be changed by the regulators, which could result in significant fines, penalties, discontinued distribution and relabeling costs. Any of these events would negatively impact our revenues and costs of operations. Pending and future litigation and claims may impair our reputation or lead us to incur significant costs. We are, or may become, party to various lawsuits and claims arising in the normal course of business, which may include lawsuits or claims relating to contracts, third-party contract manufacturers, intellectual property infringement, product recalls, product liability, false or deceptive advertising, employment matters, environmental matters or other aspects of our business. Lawsuits filed against food and beverage companies alleging deceptive advertising and labeling and those alleging noncompliance with food ingredient and packaging requirements continue to increase. In addition, actions we have taken or may take, or decisions we have made or may make, may result in legal claims or litigation against us. Negative publicity 26
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Table of Contents resulting from allegations made in lawsuits or claims asserted against us, whether or not valid, may adversely affect our reputation. In addition, we may be required to pay damage awards or settlements, become subject to injunctions or other equitable remedies, be required to modify our business processes, practices or products or be required to stop selling certain of our products. For instance, one of our operating subsidiaries, Premier Nutrition, LLC, is a defendant in several class action lawsuits related to its Joint Juice product, which it discontinued in the first quarter of fiscal 2023. At September 30, 2025, we had accrued $90.0 million related to these matters. In addition, intellectual property infringement litigation or claims could cause us to cease making, licensing or using products that incorporate the challenged intellectual property, require us to redesign or rebrand our products or packaging, if feasible, or require us to enter into royalty or licensing agreements in order to obtain the right to use a third party’s intellectual property. Any or all of these consequences could have a material adverse effect on our financial condition, results of operations and cash flows. The outcome of litigation is often difficult to predict, and the outcome of pending or future litigation may have a material adverse effect on our business, financial condition, results of operations and cash flows. Although we have various insurance programs in place, the potential liabilities associated with lawsuits and claims could be excluded from coverage or, if covered, could exceed the coverage provided by such programs. In addition, insurance carriers may seek to rescind or deny coverage with respect to pending or future claims or lawsuits. If we do not have sufficient coverage under our policies, or if coverage is denied, we may be required to make material payments to settle litigation or satisfy any judgment. Any of these consequences could have a material adverse effect on our business, financial condition, results of operations and cash flows. We are subject to environmental laws and regulations that can impose significant costs and expose us to potential financial liabilities. We and our third-party contract manufacturers and other vendors and suppliers are subject to extensive federal, state, local and foreign laws and regulations relating to the protection of human health and the environment, including those limiting the discharge and release of pollutants into the environment and those regulating the transport, storage, disposal and remediation of, and exposure to, solid and hazardous wastes. Certain environmental laws and regulations can impose joint and several liability without regard to fault on responsible parties, including past and present owners and operators of sites, related to cleaning up sites at which hazardous materials were disposed of or released. Failure to comply with environmental laws and regulations could result in severe fines and penalties by governments or courts of law. In addition, future laws may more stringently regulate the emission of greenhouse gases, particularly carbon dioxide and methane. Future events, such as new or more stringent environmental laws and regulations, new environmental claims, the discovery of currently unknown environmental conditions requiring responsive action or more vigorous interpretations or enforcement of existing environmental laws and regulations, might require us to incur additional costs that could have a material adverse effect on our business, financial condition, results of operations and cash flows. Increasing scrutiny and evolving expectations and in some cases conflicting expectations from customers, suppliers, regulators, investors, and other stakeholders with respect to our environmental, social and governance (“ESG”) practices may impose additional costs on us or expose us to new or additional risks. Companies are facing increasing scrutiny from regulators, investors, customers, suppliers and other stakeholders related to their ESG practices. Investor advocacy groups, investment funds and influential investors are increasingly focused on these practices. Also, customers and suppliers may impose ESG-related requirements as a condition to doing business with us. Our need to comply with new or more stringent ESG-related laws or regulations or ESG-related requirements of customers, suppliers, regulators or other third parties could increase our overall operational costs. Failure to adapt to or comply with legal or regulatory requirements or investor or other stakeholder expectations and standards, or our failure to meet our own ESG-related targets or goals that we publish, could expose us to increased scrutiny from the investment community as well as governmental enforcement or private litigation. Similarly, our inability to meet any ESG-related conditions of customers or suppliers or other companies that we seek to do business with could have a material adverse impact on our ability to initiate or maintain business relationships with these parties. Any failure or perceived failure by us in this regard could have a material adverse effect on our reputation and on our business, financial condition, results of operations and cash flows. In contrast to the legal, regulatory and stakeholder expectations described above, in recent years, a change in sentiment against certain ESG matters has also gained momentum across the United States at national, state and local levels, referred to by some as “anti-ESG” efforts, with several states and policymakers having proposed or enacted anti-ESG policies, legislation or initiatives. Anti-ESG policies, legislation, initiatives, litigation, legal decisions and scrutiny could result in investigations, litigation or enforcement actions against us by governments, regulators or private parties. Although we believe our ESG-related policies and practices are materially compliant with applicable laws, regulations, and orders, there can be no assurance that a governmental or private party will not challenge them. The assertion of claims and ensuing investigations, litigation, 27
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Table of Contents enforcement actions or other legal proceedings, regardless of their merit or outcome, could result in substantial cost to us, divert management’s time and attention from operations, damage our reputation and harm our business. However, efforts we might take to mitigate these risks could run contrary to conflicting expectations of other stakeholders as described above and similarly harm our reputation and business. We make statements about our targets, goals and initiatives relating to ESG matters, including particularly climate change and sustainability, through our Impact Report, our other non-financial reports, information provided on our website and other communications. The forward-looking statements we make regarding climate change and sustainability reflect our plans and aspirations but are not guarantees that we will achieve them. These statements are based on estimates, assumptions and predictions and rely on data and analytics from third parties that we do not control and cannot independently. Pursuing these goals and initiatives involves risks and uncertainties and may require substantial investments. Our failure, or perceived failure, to accomplish or accurately track and report on our ESG goals, further our ESG initiatives, or adhere to our other public ESG-related statements could adversely affect our reputation, expose us to increased scrutiny from the investment community, and lead to governmental enforcement or private litigation, any of which could have a material adverse effect on our reputation and on our business, financial condition, or results of operations. Standards for tracking and reporting ESG matters, particularly in regards to climate change and sustainability, continue to evolve. Our use of disclosure frameworks and standards, and the interpretation or application of those frameworks and standards, may change from time to time or differ from those of others. This may result in a lack of consistent or meaningful comparative data from period to period or between us and other companies in the same industry. In addition, our processes and controls may not comply with evolving standards for identifying, measuring and reporting ESG metrics, including ESG-related disclosures that may be required by regulators, and such standards may change over time, which could result in significant revisions to our current goals, reported progress in achieving such goals, or ability to achieve such goals in the future. Lastly, our reported climate and sustainability metrics are developed with the assistance of third parties in part based on their proprietary analytics of our business, which we cannot independently verify. Any failure or perceived failure by us to accurately report ESG-related metrics or targets, whether legally mandated or voluntarily disclosed, could have a material adverse effect on our reputation and on our business, financial condition, or results of operations. Risks Related to Ownership of Our Common Stock The market price and trading volume of our common stock may be volatile. The market price of our common stock could fluctuate significantly for many reasons, including in response to the risks and uncertainties discussed in this report or for reasons unrelated to our specific performance, such as reports by industry analysts, our failure to meet analysts’ earnings estimates, investor perceptions, or negative developments relating to our customers, competitors or suppliers, as well as general economic and industry conditions. Furthermore, the stock markets have experienced price and volume fluctuations that have affected and continue to affect the market prices of equity securities of many companies. These fluctuations often have been unrelated or disproportionate to the operating performance of those companies. We may not declare or pay any dividends on our common stock for the foreseeable future. We may retain future earnings, if any, for future operations, expansion and debt repayment. We have not paid cash dividends to date and have no current plans to pay any cash dividends for the foreseeable future. Consequently, our stockholders must rely on sales of their shares of our common stock after price appreciation, which may never occur, as the only way to realize any future gains on their investment. Any future determination to pay dividends, including timing and amount, will be at the discretion of our Board of Directors and subject to, among other things, our compliance with applicable law, and depend on, among other things, our results of operations, financial condition, level of indebtedness, capital requirements, contractual restrictions, restrictions in our debt agreements, business prospects and other factors that our Board of Directors may deem relevant. Our ability to pay dividends depends on our receipt of cash dividends from our operating subsidiaries and our ability to pay dividends may be further restricted as a result of the laws of our subsidiaries’ jurisdictions of organization or their agreements, including agreements governing indebtedness. Our certificate of incorporation and bylaws and provisions of Delaware law may discourage or prevent strategic transactions, including a takeover of the Company, even if such a transaction would be beneficial to our stockholders. Provisions contained in our certificate of incorporation and bylaws and provisions of the General Corporation Law of the State of Delaware (the “DGCL”) could delay or prevent a third party from entering into a strategic transaction with us, as applicable, even if such transaction would benefit our stockholders. For example, our certificate of incorporation and bylaws: • until our 2027 annual meeting, at which time the classification of our Board of Directors will sunset, divide the members of the Board of Directors into three classes with staggered three-year terms, which may delay or prevent a change of our management or a change on control; 28
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Table of Contents • authorize the issuance of “blank-check” preferred stock that could be issued by us upon approval of the Board of Directors to increase the number of outstanding shares of capital stock, making a takeover more difficult and expensive; • provide that directors may be removed from office only for cause and that any vacancy or newly created directorships on the Board of Directors may only be filled by a majority of directors then in office, which may make it difficult for other stockholders to reconstitute the Board of Directors; • provide that special meetings of the stockholders may be called only upon the request of a majority of the Board of Directors or by the chairman of the Board of Directors or the chief executive officer; • prohibit stockholder action by written consent and require that any action to be taken by stockholders be taken at an annual or special meeting of stockholders; and • require advance notice to be given by stockholders for any stockholder proposals or director nominees. These restrictions and provisions could keep us from pursuing relationships with strategic partners and from raising additional capital, which could impede our ability to expand our business and strengthen our competitive position. These restrictions could also limit stockholder value by impeding a sale of the Company. Our certificate of incorporation provides that the Court of Chancery of the State of Delaware (the “Court of Chancery”) (or, if the Court of Chancery does not have subject matter jurisdiction, the federal district court for the State of Delaware) is the exclusive forum for the following types of actions or proceedings under Delaware statutory or common law: • any derivative action or proceeding brought on our behalf; • any action asserting a breach of fiduciary duty; • any action asserting a claim against us arising pursuant to the DGCL; and • any action asserting a claim against us that is governed by the internal affairs doctrine. This provision would not apply to suits brought to enforce a duty or liability created by the Exchange Act, for which the U.S. federal courts have exclusive jurisdiction. Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all Securities Act actions. Accordingly, both state and federal courts have jurisdiction to entertain such claims. However, our certificate of incorporation also provides that U.S. federal courts will, to the fullest extent permitted by law, be the sole and exclusive forum for the resolution of any complaint asserting a cause of action or proceeding arising under the Securities Act. While the Delaware courts have determined that choice of forum provisions are facially valid, a stockholder may nevertheless seek to bring a claim in a venue other than that designated in the Company’s exclusive forum provision. Although our certificate of incorporation contains the exclusive forum provision described above, it is possible that a court could find that such a provision is inapplicable for a particular claim or action or that such provision is unenforceable. The exclusive forum provision shall not relieve us of our duties to comply with the federal securities laws and the rules and regulations thereunder, and our stockholders will not be deemed to have waived our compliance with these laws, rules and regulations. This choice of forum provision may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with the Company or its directors, officers, or other employees and may discourage these types of lawsuits. Alternatively, if a court were to find the choice of forum provision contained in our certificate of incorporation to be inapplicable or unenforceable in an action, we may incur additional costs associated with resolving such action in other jurisdictions. General Risks Changes in tax laws may adversely affect us, and the IRS or a court may disagree with our tax positions, which may result in adverse effects on our business, financial condition, results of operations and cash flows. There can be no assurance that future tax law changes will not increase the rate of the corporate income tax significantly; impose new limitations on deductions, credits or other tax benefits; or make other changes that may adversely affect the performance of an investment in our stock. Furthermore, there is no assurance that the IRS or a court will agree with the positions taken by us, in which case tax penalties and interest may be imposed that could adversely affect our business, financial condition, results of operations and cash flows. We may not be able to operate successfully if we are unable to recruit, hire, retain and develop key personnel and a qualified and diverse workforce. In addition, temporary workforce disruptions or the inability of our employees to safely perform their jobs for any reason, including as a result of illness, could adversely impact our business, financial condition, results of operations and cash flows. 29
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Table of Contents We depend upon the skills, working relationships and continued services of key personnel, including our senior management team. In addition, our ability to achieve our operating goals depends upon our ability to recruit, hire, retain and develop qualified and diverse personnel to operate and expand our business. We compete with other companies both within and outside of our industry for talented personnel. If we lose key personnel, or one or more members of our senior management team, and we fail to develop adequate succession plans, or if we fail to hire, retain and develop a sufficient number of qualified and diverse employees to operate and expand our business, our business, financial condition, results of operations and cash flows could be harmed. Our business is dependent upon our employees being able to safely perform their jobs. If we experience workforce disruptions or periods where our employees are unable to safely perform their jobs for any reason, including as a result of illness or restrictions put in place by governmental authorities, our business, financial condition, results of operations and cash flows could be adversely affected. Increases in labor-related costs, including costs of medical and other employee health and welfare benefits, may reduce our profitability. Inflationary pressures and shortages in the labor market have increased, and could continue to increase, our labor costs, which could negatively impact our profitability. With approximately 530 employees as of November 1, 2025, our profitability may be substantially affected by costs of medical and other health and welfare benefits for these employees. Although we try to control these costs, they can vary because of changes in healthcare laws and claims experience, which have the potential to increase the cost of providing medical and other employee health and welfare benefits. Any substantial increase could negatively affect our profitability. If we are unable to continue to satisfy the requirements of Section 404 of the Sarbanes-Oxley Act, or our internal control over financial reporting is not effective, the reliability of our financial statements may be questioned, and the price of our common stock could suffer. Section 404 of the Sarbanes-Oxley Act of 2002 (“SOX”) requires any company subject to the reporting requirements of the U.S. securities laws to do a comprehensive evaluation of its and its consolidated subsidiaries’ internal control over financial reporting. To comply with this statute, we are required to document and test our internal control procedures, our management is required to assess and issue a report concerning our internal control over financial reporting and our independent registered public accounting firm is required to issue an opinion on its audit of our internal control over financial reporting. The rules governing the standards that must be met for management to assess our internal control over financial reporting are complex and require significant documentation, testing and possible remediation to meet the detailed standards under the rules. During the course of its testing, our management may identify material weaknesses or significant deficiencies which may not be remedied in time to meet the deadlines imposed by SOX and SEC rules. If our management cannot favorably assess the effectiveness of our internal control over financial reporting or our independent registered public accounting firm identifies material weaknesses in our internal controls, investor confidence in our financial results may weaken and the price of our common stock may suffer. In addition, in the event we do not maintain effective internal control over financial reporting, we might fail to timely prevent or detect potential financial misstatements. As of September 30, 2025, management determined that our internal control over financial reporting was effective. Actions of stockholders could cause us to incur substantial costs, divert management’s attention and resources and have an adverse effect on our business. We may, from time to time, be subject to proposals and other requests from stockholders urging us to take certain corporate actions, including proposals seeking to influence our corporate policies or effect a change in our management. In the event of such stockholder proposals, particularly with respect to matters which our management and Board of Directors, in exercising their fiduciary duties, disagree with or have determined not to pursue, our business could be adversely affected because responding to actions and requests of stockholders can be costly and time-consuming, disrupting our operations and diverting the attention of management and our employees. Additionally, perceived uncertainties as to our future direction may result in the loss of potential business opportunities and may make it more difficult to attract and retain qualified personnel, business partners and customers. ITEM 1B. UNRESOLVED STAFF COMMENTS None. 30
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Table of Contents ITEM 1C. CYBERSECURITY Overview and Leadership Our enterprise risk management framework addresses cybersecurity risk along with other risks as part of our overall enterprise risk management process. We maintain a comprehensive information technology, data governance and cybersecurity program that leverages people, processes and technology to support our information technology systems and detect, identify, prevent, defend against and mitigate information technology and data security risks. Our cybersecurity program is aligned with the National Institute of Standards and Technology Cybersecurity Framework. This framework encompasses key processes, policies and controls to ensure protection, detection, identification, response and recovery capabilities across our organization. Our information security program also addresses cybersecurity risks associated with our use of third-party service providers, including cybersecurity vendors, cybersecurity software and hardware providers, other vendors and customers, service providers and other parties with access to our systems and data as well as the systems of third parties that could adversely affect our operations or business in the event of a cybersecurity incident affecting those third-party systems. We use systems and processes designed to assess, identify and reduce the potential impact of a cybersecurity incident at any of our third-party service providers. We assess information security controls of certain of our third- party service providers as part of our third-party information technology risk due diligence, and we conduct third-party vulnerability analyses regularly. Information security is integral to our information technology strategy, with accountability embedded at all organizational levels, including our operations, management and Board of Directors. Key elements include: • Managed Detection and Response (“MDR”) & Security Operations Center (“SOC”): Our operations team employs MDR and a SOC for round-the-clock monitoring of cyber threats and vulnerabilities. • Vulnerability Management: We maintain technology solutions for cybersecurity prevention and defense, including outside firewalls, multi-factor authentication systems, separate intrusion prevention and detection systems, anti-virus and anti-malware products and remote access controls. Continuous vulnerability scoring helps us address emerging risks objectively and proactively. • Incident Response: Security incidents are managed through established protocols, with escalations to senior management to assess materiality and disclosure requirements. Our information security team develops, implements and regularly tests incident response and information recovery plans designed to assess and respond to cybersecurity threats and incidents. • Board Oversight: The Audit Committee of our Board of Directors is responsible for the oversight of cybersecurity risks. It receives regular updates and presentations on our cybersecurity environment, including strategies, processes and policies, cybersecurity incidents, risks and threats, cybersecurity projects we have implemented and plan to implement and other cybersecurity developments and industry trends. These updates are led by our Chief Information Officer, a seasoned information technology professional with over 20 years of experience, supported by a dedicated security team. The chair of the Audit Committee reports to the full Board of Directors after each meeting. • Risk Management: Cybersecurity risks are either mitigated or documented in a risk register for non-material risks. Non-material risks are reviewed periodically to ensure continuous improvement and timely resolution. In addition, we maintain insurance to help reduce our exposure from potential losses should a cybersecurity incident arise. Use of Third Parties We collaborate with, and intend to continue to collaborate with, nationally recognized third-party experts for specialized security functions in rapidly evolving areas. This partnership approach enables us to leverage advanced expertise in threat identification, penetration testing, tabletop exercises, maturity assessments, training, awareness and incident response. We routinely evaluate third-party certifications (such as SOC and Insurance Services Office reports) for applications within the scope of our financial audits, supplementing these with bridge letters and internal controls when necessary. Additionally, our security team uses advanced software to assess third-party security postures, providing maturity scores that inform risk management and foster continuous improvement throughout our partnerships. Training and Preparedness The Company mandates ongoing cybersecurity training for all employees, covering a broad range of relevant topics. High-risk roles receive additional specialized training. We conduct regular phishing and social engineering simulations, with organization-wide reporting of results. Leadership teams also participate in annual tabletop exercises (simulated security incidents) to reinforce preparedness and refine our response plan. In addition, we maintain cybersecurity insurance to provide an added layer of protection and support in the event of a significant cybersecurity incident. 31
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Table of Contents Effect of Cybersecurity Events While no previous cybersecurity incidents have materially affected the Company, a cybersecurity incident could have a material effect on our results of operations and financial condition. As described above under “Item 1A-Risk Factors - Technology failures, cybersecurity incidents and corruption of our data privacy protections could disrupt our operations and negatively impact our business,” a material cybersecurity incident could disrupt our business, lead to the loss of data or cause us to suffer financial and/or reputational damage, in addition to litigation or remediation costs or penalties. ITEM 2. PROPERTIES We lease our principal executive offices in St. Louis, Missouri. Our other administrative offices, as well as the warehousing, distribution and research and development facilities of our principal operations, are described below. While our products are primarily manufactured by third-party contract manufacturers, we also own one manufacturing facility. For additional information regarding our third-party manufacturing network, see “Business - Supply Chain” in Item 1 of this report. We lease research and development facilities and administrative offices in Emeryville, California. We also lease administrative offices in Dallas, Texas; Rogers, Arkansas; Munich, Germany and Worb, Switzerland. Through third-party logistics firms, we lease warehouse space in Tagelswangen, Switzerland and a distribution center with warehouse space in Kleve, Germany. We also manufacture protein and energy bars and gels and conduct research and development through an owned facility in Voerde, Germany. Management believes our facilities generally are in good operating condition. In conjunction with our arrangements with third-party contract manufacturers, management believes, taken as a whole, our facilities generally are suitable, adequate and of sufficient capacity for our current operations. See “Risk Factors” included in Item 1A of this report for more information about our supply chain and related risks. ITEM 3. LEGAL PROCEEDINGS The information required under this Item 3 is set forth in Note 14 within “Notes to Consolidated Financial Statements” included in Item 8 of this report and is incorporated herein by this reference. For disclosure of environmental proceedings with a governmental entity as a party pursuant to Item 103(c)(3)(iii) of Regulation S-K, the Company has elected to disclose matters where the Company reasonably believes such proceeding would result in monetary sanctions, exclusive of interest and costs, of $1.0 million or more. Applying this threshold, there are no such environmental proceedings pending as of the filing date of this report or that were resolved during the three months ended September 30, 2025. ITEM 4. MINE SAFETY DISCLOSURES Not applicable. 32
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Table of Contents PART II ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES Market for Common Stock Our common stock is traded on the New York Stock Exchange (the “NYSE”) under the trading symbol “BRBR.” There were approximately 3,263 stockholders of record on November 11, 2025. Dividends We may not pay cash dividends on our common stock for the foreseeable future. Any future determination to pay dividends, and the amount and timing of any such payment, will be at the discretion of our Board of Directors and subject to, among other things, our compliance with applicable law, and depending on, among other things, our results of operations, financial condition, level of indebtedness, capital requirements, contractual restrictions, restrictions in our debt agreements, business prospects, our cash flow and liquidity position and other factors that our Board of Directors may deem relevant. Issuer Purchases of Equity Securities The following table sets forth information with respect to repurchases of shares of our common stock during the three months ended September 30, 2025 and our common stock repurchase authorization. Period Total Numberof SharesPurchased Average PricePaid perShare (a) Total Number of SharesPurchased as Part of PubliclyAnnounced Plans or Programs(b) Approximate Dollar Value ofShares that May Yet bePurchased Under the Plans orPrograms (b) July 1, 2025 - July 31, 2025 — $ — — $197,039,286 August 1, 2025 - August 31, 2025 3,082,892 $ 40.02 3,082,892 $73,654,768 September 1, 2025 - September 30, 2025 2,083,438 $ 40.08 2,083,438 $316,503,311 Total 5,166,330 $ 40.04 5,166,330 $316,503,311 (a) Does not include broker’s commissions or accrued excise tax. (b) On March 6, 2025, the Company’s Board of Directors approved a $300,000,000 repurchase authorization with respect to shares of the Company’s common stock (the “Prior Authorization”). The Prior Authorization was effective on March 6, 2025 and was cancelled effective August 29, 2025. On September 2, 2025, the Company’s Board of Directors approved a new $400,000,000 repurchase authorization with respect to shares of the Company’s common stock (the “New Authorization”). The New Authorization was effective on September 2, 2025 and has an expiration date of September 2, 2027. Repurchases may be made from time to time in the open market, private purchases, through forward, derivative, accelerated repurchase or automatic purchase transactions, or otherwise. 33
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Table of Contents Performance Graph The following performance graph compares the changes, for the period indicated, in the cumulative total value of $100 hypothetically invested in each of (i) our publicly traded common stock; (ii) the Russell 1000 index; and (iii) the S&P 1500 Packaged Foods & Meats Index. The graph covers the period from September 30, 2020 through September 30, 2025. * $100 invested on September 30, 2020 in stock or index. Our publicly traded common stock includes our Class A common stock, $0.01 par value per share prior to March 10, 2022 and our BellRing common stock, $0.01 par value per share subsequent to March 10, 2022. On March 10, 2022, each share of the Class A common stock was converted into one share of BellRing common stock plus $2.97 in cash in connection with Post Holdings, Inc.’s distribution of our common stock to its shareholders in a spin-off transaction The cumulative total return of our publicly traded common stock includes the reinvestment of the $2.97 cash payment. Performance Graph Data BellRing Brands, Inc.($) Russell 1000 Index ($) S&P 1500 PackagedFoods & Meats Index($) 9/30/2020 100.00 100.00 100.00 9/30/2021 148.26 130.95 105.62 9/30/2022 110.80 108.39 111.28 9/29/2023 221.66 131.34 113.94 9/30/2024 326.44 178.18 126.32 9/30/2025 195.42 209.76 107.00 The stock price performance included in this graph is not necessarily indicative of future stock price performance. This performance graph shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or subject to the liabilities of the Exchange Act, nor shall it be incorporated by reference into any of our filings under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such filing. ITEM 6. [RESERVED] 34
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Table of Contents ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS The following discussion summarizes the significant factors affecting the consolidated operating results, financial condition, liquidity and capital resources of BellRing Brands, Inc. and its consolidated subsidiaries. This discussion should be read in conjunction with the financial statements under Item 8 of this report and the “Cautionary Statement on Forward-Looking Statements” on page 1. The terms “our,” “we,” “us,” “Company” and “BellRing” refer to BellRing Brands, Inc. and its consolidated subsidiaries. The following should be read in conjunction with the discussion and analysis of our fiscal 2024 results compared to our fiscal 2023 results, including any related discussion of fiscal 2023 results and activity, which can be found in Item 7 under the title “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in our Annual Report on Form 10-K for the year ended September 30, 2024, and such discussion and analysis is incorporated by reference herein. OVERVIEW We are a consumer products holding company operating in the global convenient nutrition category and are a provider of ready-to-drink (“RTD”) protein shakes and powders. We have a single operating and reportable segment, with our principal products being protein-based consumer goods. Our primary brands are Premier Protein and Dymatize. Industry & Company Trends The success of companies in the convenient nutrition category is driven by how well such companies can grow, develop and differentiate their brands. We expect the convergence of several factors to support the continued growth of the convenient nutrition category, including: • consumers’ increasingly dedicated pursuit of active lifestyles and growing interest in nutrition and wellness (including the use of GLP-1 medication); • growing awareness of the numerous health benefits of protein, including sustained energy, muscle recovery and satiety; and • a rise in snacking and the desire for products that can be consumed on-the-go as nutritious snacks or meal replacements. Nonetheless, the consumer food and beverage industry faces a number of challenges and uncertainties, including: • the highly competitive nature of the industry, which involves competition from a host of nutritional food and beverage companies, including manufacturers of other branded food and beverage products as well as manufacturers of private label and store brand products; • changing consumer preferences which require food manufacturers to identify changing preferences and to offer products that appeal to consumers; and • inflationary pressures (see “Market Trends” below for further information). Seasonality We have experienced in the past, and expect to continue to experience, seasonal fluctuations in our sales and operating profit margins because of customer spending patterns and timing of our key retailers’ promotional activity. Historically, our first fiscal quarter is seasonally low for all brands driven by a slowdown of consumption of our products during the holiday season. Sales are typically higher throughout the remainder of the fiscal year as a result of promotional activity at key retailers as well as organic growth of the business. Market Trends During fiscal 2024, inflationary pressures on protein costs eased while other costs, such as packaging and manufacturing, faced inflationary pressures. During fiscal 2025, input costs, including raw material, packaging and manufacturing costs, have faced inflationary pressures. In addition, we anticipate that announced tariffs, and any potential future modifications or incremental tariffs, could increase supply chain challenges, commodity cost volatility and consumer and economic uncertainty due to rapid changes in global trade policies. We expect these trends to have a materially adverse impact on our results of operations if we are unable to mitigate the impact on our business. For additional discussion, refer to “Liquidity and Capital Resources” within this section, as well as “Cautionary Statement on Forward- Looking Statements” on page 1 of this report and “Risk Factors” in Part I of this report. 35
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Table of Contents Items Affecting Comparability During the years ended September 30, 2025 and 2024, net sales and/or operating profit were impacted by the following items: • accelerated amortization of $17.4 million for the year ended September 30, 2024 related to the discontinuance of the PowerBar business in North America; and • provision for legal matters of $69.0 million for the year ended September 30, 2025. For additional information, refer to Note 14 within “Notes to Consolidated Financial Statements” in Item 8 of this report. For further discussion, refer to “Results of Operations” below. RESULTS OF OPERATIONS Year EndedSeptember 30, Change in dollars in millions 2025 2024 $ % Net Sales $ 2,316.6 $ 1,996.2 $ 320.4 16 % Operating Profit $ 357.4 $ 387.7 $ (30.3) (8)% Interest expense, net 68.4 58.3 10.1 17 % Income tax expense 72.8 82.9 (10.1) (12)% Net Earnings $ 216.2 $ 246.5 $ (30.3) (12)% Net Sales Net sales increased $320.4 million, or 16%, during the year ended September 30, 2025 compared to the prior year. Sales of Premier Protein products were up $286.3 million, or 17%, driven by 15% higher volumes primarily due to distribution gains and incremental promotional activity. Average net selling prices increased due to targeted price increases, partially offset by incremental promotional activity. Sales of Dymatize products were up $32.8 million, or 13%, driven by 23% higher volumes primarily due to higher international volumes. Average net selling prices decreased due to unfavorable product mix. Sales of all other products were up $1.3 million. Operating Profit Operating profit decreased $30.3 million, or 8%, during the year ended September 30, 2025 compared to the prior year. This decrease was primarily driven by a provision for legal matters of $69.0 million in the current year, higher net product costs of $72.1 million (driven by higher raw material and manufacturing costs, partially offset by lower freight costs), increased advertising expense of $13.9 million and higher warehousing and distribution costs of $12.0 million. These negative impacts were partially offset by higher net sales, as previously discussed, and accelerated amortization of $17.4 million recorded in the prior year related to the discontinuance of the PowerBar business in North America. Interest Expense, Net Interest expense, net increased $10.1 million during the year ended September 30, 2025 compared to the prior year primarily due to higher outstanding borrowings under our Revolving Credit Facility (as defined in “Liquidity and Capital Resources” within this section). As a result, the weighted-average interest rate on our total outstanding debt increased to 7.1% for the year ended September 30, 2025 from 7.0% for the year ended September 30, 2024. See Note 13 within “Notes to Consolidated Financial Statements” for additional information on our debt. 36
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Table of Contents Income Tax Expense Our effective income tax rate was 25.2% for both fiscal 2025 and 2024. The following table presents the reconciliation of income tax expense with amounts computed at the United States (“U.S.”) federal statutory tax rate. Year Ended September 30, dollars in millions 2025 2024 Computed tax at federal statutory rate (21%) $ 60.7 $ 69.2 State income taxes, net of effect on federal tax 12.6 13.5 Non-deductible compensation 5.6 3.2 Other, net (none in excess of 5% of computed tax) (6.1) (3.0) Income tax expense $ 72.8 $ 82.9 LIQUIDITY AND CAPITAL RESOURCES On March 10, 2022, we entered into a credit agreement (as amended, the “Credit Agreement”), which provided for a revolving credit facility in an aggregate principal amount of $250.0 million (the “Revolving Credit Facility”). On August 22, 2025, we entered into a First Amendment to the Credit Agreement (the “Amendment”) which, among other matters, (i) increased the aggregate principal amount available under the Revolving Credit Facility to $500.0 million, (ii) extended the maturity date of the Revolving Credit Facility to August 22, 2030 provided that if on December 14, 2029, our 7.00% Senior Notes maturing in March 2030 have not been redeemed in full in cash or refinanced and replaced in full with notes and/or loans maturing at least 91 days after August 22, 2030, then the maturity date of the Revolving Credit Facility will be December 14, 2029, (iii) reduced the interest rate on borrowings under the Revolving Credit Facility and (iv) broadened certain exceptions to covenants contained in the Credit Agreement that would otherwise restrict certain activities by us, such as repurchases of our common stock. We incurred $2.1 million of financing fees in connection with the Amendment, which were deferred and are being amortized to interest expense over the term of the Revolving Credit Facility. Letters of credit are available under the Revolving Credit Facility in an aggregate amount of up to $20.0 million. The Credit Agreement provides for potential incremental revolving and term facilities at the Company’s request and at the discretion of the lenders or other persons providing such incremental facilities, in each case on terms to be determined, and also permits the Company to incur other secured or unsecured debt, in all cases subject to conditions and limitations specified in the Credit Agreement. During the years ended September 30, 2025 and 2024, we borrowed $700.0 million and zero, respectively, and repaid $450.0 million and $25.0 million, respectively, under the Revolving Credit Facility. As of September 30, 2025, we had $247.6 million of available borrowing capacity and $2.4 million letters of credit outstanding under the Revolving Credit Facility. During the years ended September 30, 2025 and 2024, we repurchased 9.0 million and 2.6 million shares, respectively, of our common stock at an average share price of $52.62 and $56.12 per share, respectively, and at a total cost, including accrued excise tax and broker’s commissions, of $476.6 million and $148.0 million, respectively. For additional information on our Credit Agreement and share repurchases, see Notes 13 and 16 within “Notes to Consolidated Financial Statements.” Sources and Uses of Cash We expect to generate positive cash flows from operations and believe our cash on hand, cash flows from operations and current and possible future credit facilities will be sufficient to satisfy our future working capital requirements, purchase commitments, research and development activities, debt repayments (including interest payments), share repurchases and other financing requirements for the foreseeable future. We are currently not aware of any trends or demands, commitments, events or uncertainties that will result in, or that are reasonably likely to result in, our liquidity increasing or decreasing in any material way that will impact meeting our capital needs during or beyond the next twelve months. Our ability to generate positive cash flows from operations is dependent on general economic conditions, competitive pressures and other business risk factors. We believe that we have sufficient liquidity and cash on hand to satisfy our cash needs. If we are unable to generate sufficient cash flows from operations, or otherwise to comply with the terms of our credit facilities, we may be required to seek additional financing alternatives. Short-term financing needs primarily consist of working capital requirements, interest payments on our 7.00% senior notes maturing in March 2030 (the “7.00% Senior Notes”) and on outstanding borrowings under our Revolving Credit Facility and payments on our provision for legal matters. Long-term financing needs include the repayment of our 7.00% Senior Notes and outstanding borrowings under our Revolving Credit Facility. Additional long-term financing needs will depend largely on 37
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Table of Contents potential growth opportunities, including acquisition activity and other strategic transactions. Our asset-light business model requires modest capital expenditures, with annual capital expenditures over the last three fiscal years averaging less than 1% of net sales. No significant capital expenditures are planned for fiscal 2026. Additionally, we may continue to repurchase shares of our common stock. Such repurchases, if any, will depend on prevailing market conditions, our liquidity requirements, contractual restrictions and other factors. The amounts involved may be material. Cash Requirements Our cash requirements under our various contractual obligations and commitments include: • Debt Obligations and Interest Payments — See Note 13 within “Notes to Consolidated Financial Statements” for additional information on our debt and the timing of expected future principal and interest payments. • Operating Leases — See Note 10 within “Notes to Consolidated Financial Statements” for additional information on our operating leases and the timing of expected future payments. • Purchase Obligations — Purchase obligations are legally binding agreements to purchase goods, services or equipment that specify all significant terms, including: fixed or minimum quantities to be purchased and/or penalties imposed for failing to meet contracted minimum purchase quantities (such as “take-or-pay” contracts); fixed, minimum or variable price provisions; and the approximate timing of the transaction. As of September 30, 2025, we had total purchase commitments of $1,362.9 million (with $602.7 million due in fiscal 2026) which extend through fiscal 2033. • Provision for Legal Matters — See Note 14 within “Notes to Consolidated Financial Statements” for additional information on our provision for legal matters, which is expected to be paid in fiscal 2026. • Other Liabilities — Other liabilities include obligations associated with certain employee benefit programs, unrecognized tax benefits and various other long-term liabilities, all of which have some inherent uncertainty as to the amount and timing of payments and were reflected on our Consolidated Balance Sheets as of September 30, 2025. The following table presents select cash flow data, which is discussed below. Year Ended September 30, dollars in millions 2025 2024 Cash provided by (used in): Operating activities $ 260.6 $ 199.6 Investing activities (4.7) (1.8) Financing activities (238.3) (175.1) Effect of exchange rate changes on cash, cash equivalents and restricted cash 0.4 — Net increase in cash, cash equivalents and restricted cash $ 18.0 $ 22.7 Operating Activities Cash provided by operating activities for the year ended September 30, 2025 increased $61.0 million compared to the prior year. This increase was primarily driven by fluctuations in the timing of collections of trade receivables, smaller inventory cash outflows in the current year (driven by increased production in the prior year) and decreased tax payments (net of refunds) of $4.1 million, partially offset by increased interest payments of $8.7 million. Investing Activities Cash used in investing activities for the year ended September 30, 2025 increased $2.9 million compared to the prior year resulting from an increase in capital expenditures. Financing Activities Cash used in financing activities for the year ended September 30, 2025 increased $63.2 million compared to the prior year, driven by higher payments of $328.3 million, including excise tax payments and broker’s commissions, for the repurchase of our common stock, higher repayments of $425.0 million under the Revolving Credit Facility and higher tax withholding payments related to stock compensation plans of $8.0 million. These cash outflows were partially offset by higher borrowings of $700.0 million under the Revolving Credit Facility. Debt Covenants The Credit Agreement contains affirmative and negative covenants applicable to us and our restricted subsidiaries customary for agreements of this type, including delivery of financial and other information; compliance with laws; 38
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Table of Contents maintenance of property, existence, insurance, and books and records; providing for inspection rights; obligation to provide collateral and guarantees by certain new subsidiaries; delivery of environmental reports; participation in an annual meeting with the agent and the lenders; further assurances; and limitations with respect to indebtedness, liens, fundamental changes, restrictive agreements, use of proceeds, amendments of organization documents, prepayments and amendments of certain indebtedness, dispositions of assets, acquisitions and other investments, sale leaseback transactions, changes in the nature of business, transactions with affiliates and dividends and redemptions or repurchases of stock. Under the terms of the Credit Agreement, we are also required to comply with a financial covenant requiring us to maintain a total net leverage ratio (as defined in the Credit Agreement) not to exceed 6.00:1.00, measured as of the last day of each fiscal quarter. We were in compliance with the financial covenant as of September 30, 2025, and we do not believe non-compliance is reasonably likely in the foreseeable future. The Credit Agreement provides for potential incremental revolving and term facilities at our request and at the discretion of the lenders or other persons providing such incremental facilities, in each case on terms to be determined, and also permits us to incur other secured or unsecured debt, in all cases subject to conditions and limitations as specified in the Credit Agreement. In addition, the indenture governing the 7.00% Senior Notes contains negative covenants customary for this type of agreement that limit our ability and the ability of our restricted subsidiaries to, among other things: borrow money or guarantee debt; create liens; pay dividends on, or redeem or repurchase, stock; make specified types of investments and acquisitions; enter into or permit to exist contractual limits on the ability of our subsidiaries to pay dividends to us; enter into transactions with affiliates; and sell assets or merge with other companies. Certain of these covenants are subject to suspension when and if the 7.00% Senior Notes receive investment grade ratings. COMMODITY TRENDS We are exposed to price fluctuations primarily from purchases of ingredients and packaging materials, energy and other inputs. Our principal ingredients are milk-based, whey-based and soy-based proteins, protein blends, sweeteners and vitamin and mineral blends. Our principal packaging materials consist of aseptic foil and plastic lined cardboard cartons, flexible and rigid plastic film and containers, beverage packaging and corrugate. These costs have been volatile in recent years, and future changes in such costs may cause our results of operations and our operating margins to fluctuate significantly. We manage the impact of cost increases, wherever possible, on commercially reasonable terms, by locking in prices on the quantities through purchase commitments required to meet our production requirements. In addition, we may attempt to offset the effect of increased costs by raising prices to our customers. However, for competitive reasons, we may not be able to pass along the full effect of increases in raw materials and other input costs as we incur them. See “Market Trends” section above for additional information regarding inflationary pressures on our commodity purchases. CURRENCY Certain sales and costs of our foreign operations are denominated in Euros and Canadian Dollars (“CAD”). Consequently, profits from these operations are impacted by fluctuations in the value of this currency relative to the U.S. Dollar. We incur gains and losses within our stockholders’ equity due to the translation of our financial statements from foreign currencies into U.S. Dollars and our income statement trends may be impacted by such translation of the income statements of our foreign operations. The exchange rates used to translate our foreign sales into U.S. Dollars positively affected net sales by less than 1% during the year ended September 30, 2025, and did not have a material impact on our operating profit or net earnings during the year ended September 30, 2025. CRITICAL ACCOUNTING ESTIMATES The preparation of financial statements in accordance with accounting principles generally accepted in the United States of America (“GAAP”) requires the use of judgment, estimates and assumptions. We make these subjective determinations after considering our historical performance, management’s experience, current economic trends and events and information from outside sources. Inherent in this process is the possibility that actual results could differ from these estimates and assumptions for any particular period. Our significant accounting policies are described in Note 2 within “Notes to Consolidated Financial Statements.” Our critical accounting estimates are those that involve a significant amount of estimation uncertainty and have a meaningful impact on the reporting of our financial condition and results of operations. Revenue Recognition, Allowance for Trade Promotions — The recognition of certain variable trade promotions, which are treated as a reduction of revenue, requires significant management judgment regarding estimated purchase volumes and program participation. Estimates are based on contractual provisions, redemption rate assumptions and our assessment of current market provisions. Redemption rate assumptions are based on historical results of similar promotions on a deal-by-deal 39
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Table of Contents basis, adjusted for current expectations of promotion performance based on current market trends. We review and update estimates of variable consideration quarterly. Uncertainties related to the estimates of variable consideration are resolved in a short time frame and do not require any additional constraint on variable consideration. Less than 1% of our annual net sales represent variable consideration that will be resolved in the subsequent period. Based on historical experience, we do not believe that there will be significant changes to our estimates of variable consideration when any uncertainties are resolved with customers. However, significant changes in our estimates could have a material impact on our results of operations. RECENTLY ISSUED AND ADOPTED ACCOUNTING STANDARDS See Note 3 within “Notes to Consolidated Financial Statements” for a discussion regarding recently issued and adopted accounting standards. ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK The Company is exposed to market risk from commodity prices, foreign currency exchange rates and interest rates, among others. For additional discussion of these risks, refer to “Cautionary Statement on Forward-Looking Statements” on page 1 and “Risk Factors” in Item 1A of this report. Commodity Price Risk In the ordinary course of business, the Company is exposed to commodity price risks relating to the purchases of raw materials. The Company may use futures contracts and options to manage certain of these exposures when it is practical to do so. A hypothetical 10% adverse change in the market price of the Company’s principal hedged commodities, non-fat dry milk, would have changed the fair value of the Company’s commodity-related derivatives portfolio by approximately $1 million as of September 30, 2025 and less than $1 million as of September 30, 2024. This volatility analysis ignores changes in the exposures inherent in the underlying hedged transactions. Because the Company does not hold or trade derivatives for speculation or profit, all changes in derivative values are effectively offset by corresponding changes in the underlying commodity exposures. For additional information regarding the Company’s commodity contracts, see Note 11 within “Notes to Consolidated Financial Statements.” Foreign Currency Risk Related to Active Nutrition International GmbH, whose functional currency is the Euro, the Company is exposed to risks of fluctuations in future cash flows and earnings due to changes in foreign currency exchange rates. Related to the Premier Nutrition Company, LLC, a subsidiary of the Company whose functional currency is the U.S. Dollar, the Company is exposed to foreign currency transactional risk as it sells to certain customers in CAD. The foreign currency balance sheet exposures as a result of these CAD transactions are not expected to result in a significant impact on future earnings or cash flows. Interest Rate Risk As of both September 30, 2025 and 2024, the Company had outstanding principal value indebtedness of $840.0 million related to its 7.00% Senior Notes. Additionally, the Company had an aggregate principal amount of $250.0 million outstanding under its Revolving Credit Facility as of September 30, 2025 and no amounts outstanding under its Revolving Credit Facility as of September 30, 2024. Borrowings under the Revolving Credit Facility bore interest at a variable interest rate of 6.14% as of September 30, 2025. As of September 30, 2025 and 2024, the fair value of the Company’s debt, excluding any borrowings under its Revolving Credit Facility, was $869.0 million and $880.6 million, respectively. Changes in interest rates impact fixed and variable rate debt differently. For fixed rate debt, a change in interest rates will only impact the fair value of the debt, whereas a change in the interest rates on variable rate debt will impact interest expense and cash flows. A hypothetical 10% change in interest rates would have changed the fair value of the fixed rate debt by approximately $5 million and $7 million as of September 30, 2025 and 2024, respectively. A hypothetical 10% change in interest rates would have had an immaterial impact on both interest expense and interest paid on variable rate debt during the years ended September 30, 2025 and 2024. For additional information regarding the Company’s debt, see Note 13 within “Notes to Consolidated Financial Statements.” 40
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Table of Contents ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA INDEX TO FINANCIAL STATEMENTS Audited Consolidated Financial Statements Report of Independent Registered Public Accounting Firm (PCAOB ID 238) 42 Consolidated Statements of Operations for the Fiscal Years Ended September 30, 2025, 2024 and 2023 44 Consolidated Statements of Comprehensive Income for the Fiscal Years Ended September 30, 2025, 2024 and 2023 45 Consolidated Balance Sheets as of September 30, 2025 and 2024 46 Consolidated Statements of Cash Flows for the Fiscal Years Ended September 30, 2025, 2024 and 2023 47 Consolidated Statements of Stockholders’ Deficit for the Fiscal Years Ended September 30, 2025, 2024 and 2023 48 Notes to Consolidated Financial Statements 49 41
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Table of Contents Report of Independent Registered Public Accounting Firm To the Board of Directors and Stockholders of BellRing Brands, Inc. Opinions on the Financial Statements and Internal Control over Financial Reporting We have audited the accompanying consolidated balance sheets of BellRing Brands, Inc. and its subsidiaries (the “Company”) as of September 30, 2025 and 2024, and the related consolidated statements of operations, of comprehensive income, of stockholders' deficit and of cash flows for each of the three years in the period ended September 30, 2025, including the related notes (collectively referred to as the “consolidated financial statements”). We also have audited the Company's internal control over financial reporting as of September 30, 2025, based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of the Company as of September 30, 2025 and 2024, and the results of its operations and its cash flows for each of the three years in the period ended September 30, 2025 in conformity with accounting principles generally accepted in the United States of America. Also in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of September 30, 2025, based on criteria established in Internal Control - Integrated Framework (2013) issued by the COSO. Basis for Opinions The Company's management is responsible for these consolidated financial statements, for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting, included in Management’s Report on Internal Control Over Financial Reporting appearing under Item 9A. Our responsibility is to express opinions on the Company’s consolidated financial statements and on the Company's internal control over financial reporting based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (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 audits to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud, and whether effective internal control over financial reporting was maintained in all material respects. Our audits of the consolidated financial statements 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. 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 audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions. Definition and Limitations of Internal Control over Financial Reporting 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 (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) 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 (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 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. 42
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Table of Contents Critical Audit Matters The critical audit matter communicated below is a matter arising from the current period audit of the consolidated financial statements that was communicated or required to be communicated to the audit committee and that (i) relates to accounts or disclosures that are material to the consolidated financial statements and (ii) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters 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. Receivables, net - Allowance for Trade Promotions As described in Note 2 to the consolidated financial statements, many of the Company's contracts with customers include some form of variable or fixed consideration. The most common forms of variable and fixed consideration are trade promotions, rebates and discount programs. These programs resulted in an allowance for trade promotions of $48.6 million which is reflected as a reduction of Receivables, net as of September 30, 2025. Variable consideration is treated as a reduction of revenue at the time product revenue is recognized. Methodologies for determining these provisions are dependent on specific customer pricing and promotional practices, which range from contractually fixed percentage price reductions to reimbursement based on actual occurrence or performance. The Company reviews and updates estimates of variable consideration each period. Uncertainties related to the estimates of variable consideration are resolved in a short time frame and do not require any additional constraint on variable consideration. The principal consideration for our determination that performing procedures relating to receivables, net - allowance for trade promotions is a critical audit matter is the matter involved significant audit effort in performing procedures related to management’s allowance for trade promotions. Addressing the matter involved performing procedures and evaluating audit evidence in connection with forming our overall opinion on the consolidated financial statements. These procedures included testing the effectiveness of controls relating to the accuracy and valuation of the allowance for trade promotions. These procedures also included, among others (i) testing management’s process for determining the allowance for trade promotions; (ii) evaluating the appropriateness of the methodology; and (iii) testing the accuracy and relevance of underlying data used to determine the allowance for trade promotions by examining customer agreements and sales data on a test basis. /s/ PricewaterhouseCoopers LLP St. Louis, Missouri November 18, 2025 We have served as the Company's auditor since 2019. 43
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Table of Contents BELLRING BRANDS, INC. CONSOLIDATED STATEMENTS OF OPERATIONS (in millions, except per share data) Year Ended September 30, 2025 2024 2023 Net Sales $ 2,316.6 $ 1,996.2 $ 1,666.8 Cost of goods sold 1,546.2 1,288.9 1,136.6 Gross Profit 770.4 707.3 530.2 Selling, general and administrative expenses 396.0 284.6 216.3 Amortization of intangible assets 17.0 35.0 26.6 Operating Profit 357.4 387.7 287.3 Interest expense, net 68.4 58.3 66.9 Earnings before Income Taxes 289.0 329.4 220.4 Income tax expense 72.8 82.9 54.9 Net Earnings $ 216.2 $ 246.5 $ 165.5 Earnings per Common Share: Basic $ 1.70 $ 1.89 $ 1.24 Diluted $ 1.68 $ 1.86 $ 1.23 Weighted-Average Common Shares Outstanding: Basic 126.9 130.3 133.0 Diluted 128.5 132.3 134.1 See accompanying Notes to Consolidated Financial Statements. 44
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Table of Contents BELLRING BRANDS, INC. CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (in millions) Year Ended September 30, 2025 2024 2023 Net Earnings $ 216.2 $ 246.5 $ 165.5 Unrealized foreign currency translation adjustments 1.0 1.1 1.2 Other Comprehensive Income 1.0 1.1 1.2 Total Comprehensive Income $ 217.2 $ 247.6 $ 166.7 See accompanying Notes to Consolidated Financial Statements. 45
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Table of Contents BELLRING BRANDS, INC. CONSOLIDATED BALANCE SHEETS (in millions, except par value) September 30, 2025 2024 ASSETS Current Assets Cash and cash equivalents $ 71.8 $ 70.8 Restricted cash 17.3 0.3 Receivables, net 223.4 220.4 Inventories 330.4 286.1 Prepaid expenses and other current assets 22.6 15.1 Total Current Assets 665.5 592.7 Property, net 19.0 9.2 Goodwill 65.9 65.9 Intangible assets, net 125.0 141.8 Deferred income taxes 32.4 12.9 Other assets 33.2 14.5 Total Assets $ 941.0 $ 837.0 LIABILITIES AND STOCKHOLDERS’ DEFICIT Current Liabilities Accounts payable $ 119.5 $ 121.0 Other current liabilities 163.3 82.7 Total Current Liabilities 282.8 203.7 Long-term debt 1,084.3 833.1 Deferred income taxes 0.4 0.4 Other liabilities 27.4 5.7 Total Liabilities 1,394.9 1,042.9 Commitments and Contingencies (See Note 14) Stockholders’ Deficit Preferred stock, $0.01 par value; 50.0 shares authorized, zero shares issued and outstanding in each year — — Common stock; $0.01 par value; 500.0 shares authorized; 120.8 and 128.8 shares outstanding,respectively 1.4 1.4 Additional paid-in capital 48.7 37.3 Retained earnings 272.6 56.4 Accumulated other comprehensive loss (1.0) (2.0) Treasury stock, at cost, 16.9 and 7.9 shares, respectively (775.6) (299.0) Total Stockholders’ Deficit (453.9) (205.9) Total Liabilities and Stockholders’ Deficit $ 941.0 $ 837.0 See accompanying Notes to Consolidated Financial Statements. 46
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Table of Contents BELLRING BRANDS, INC. CONSOLIDATED STATEMENTS OF CASH FLOWS (in millions) Year Ended September 30, 2025 2024 2023 Cash Flows from Operating Activities Net earnings $ 216.2 $ 246.5 $ 165.5 Adjustments to reconcile net earnings to net cash provided by operating activities: Depreciation and amortization 18.6 36.5 28.3 Non-cash stock-based compensation expense 22.1 21.0 14.2 Deferred income taxes (20.4) (8.7) (6.0) Other, net 0.7 1.9 1.2 Other changes in operating assets and liabilities: (Increase) decrease in receivables (1.3) (51.6) 5.5 (Increase) decrease in inventories (43.1) (90.9) 6.4 Increase in prepaid expenses and other current assets (2.3) (1.7) (0.8) Decrease (increase) in other assets 0.4 (2.5) (1.8) Increase in accounts payable and other current liabilities 69.6 49.2 3.1 Increase (decrease) in non-current liabilities 0.1 (0.1) — Net Cash Provided by Operating Activities 260.6 199.6 215.6 Cash Flows from Investing Activities Additions to property (4.7) (1.8) (1.8) Net Cash Used in Investing Activities (4.7) (1.8) (1.8) Cash Flows from Financing Activities Proceeds from issuance of long-term debt 700.0 — 115.0 Repayments of long-term debt (450.0) (25.0) (189.0) Purchases of treasury stock (474.9) (146.6) (125.5) Payments of deferred financing fees (2.1) — — Tax withholding payments related to stock compensation plans (11.5) (3.5) (2.2) Other, net 0.2 — — Net Cash Used in Financing Activities (238.3) (175.1) (201.7) Effect of Exchange Rate Changes on Cash, Cash Equivalents and Restricted Cash 0.4 — 0.5 Net Increase in Cash, Cash Equivalents and Restricted Cash 18.0 22.7 12.6 Cash, Cash Equivalents and Restricted Cash, Beginning of Year 71.1 48.4 35.8 Cash, Cash Equivalents and Restricted Cash, End of Year $ 89.1 $ 71.1 $ 48.4 See accompanying Notes to Consolidated Financial Statements. 47
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Table of Contents BELLRING BRANDS, INC. CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ DEFICIT (in millions) As of and for the Year Ended September 30, 2025 2024 2023 Preferred Stock Beginning and end of year $ — $ — $ — Common Stock Beginning and end of year 1.4 1.4 1.4 Additional Paid-in Capital Beginning of year 37.3 19.3 7.0 Activity under stock and deferred compensation plans (10.7) (3.0) (1.9) Non-cash stock-based compensation expense 22.1 21.0 14.2 End of year 48.7 37.3 19.3 Retained Earnings (Accumulated Deficit) Beginning of year 56.4 (190.1) (355.6) Net earnings 216.2 246.5 165.5 End of year 272.6 56.4 (190.1) Accumulated Other Comprehensive Loss Beginning of year (2.0) (3.1) (4.3) Foreign currency translation adjustments 1.0 1.1 1.2 End of year (1.0) (2.0) (3.1) Treasury Stock Beginning of year (299.0) (151.0) (24.7) Purchases of treasury stock (476.6) (148.0) (126.3) End of year (775.6) (299.0) (151.0) Total Stockholders’ Deficit $ (453.9) $ (205.9) $ (323.5) Preferred Stock, shares Beginning and end of year — — — Common Stock, shares Beginning of year 128.8 131.2 135.3 Activity under stock and deferred compensation plans 1.0 0.2 0.1 Purchases of treasury stock (9.0) (2.6) (4.2) End of year 120.8 128.8 131.2 See accompanying Notes to Consolidated Financial Statements. 48
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Table of Contents BELLRING BRANDS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS ($ in millions, except per share information or where indicated otherwise) NOTE 1 — BACKGROUND BellRing Brands, Inc. is a consumer products holding company operating in the global convenient nutrition category and is a provider of ready-to-drink (“RTD”) protein shakes and powders. The Company’s principal products are protein-based consumer goods and its primary brands are Premier Protein and Dymatize. Unless otherwise stated or the context otherwise indicates, all references in these financial statements and notes to “BellRing,” the “Company,” “us,” “our” or “we” mean BellRing Brands, Inc. and its consolidated subsidiaries. NOTE 2 — SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES Principles of Consolidation — These consolidated financial statements include the operations of BellRing and its subsidiaries. All intercompany balances and transactions have been eliminated. Certain reclassifications have been made to previously reported financial information to conform to the current year presentation. Use of Estimates and Allocations — The consolidated financial statements of the Company are prepared in conformity with accounting principles generally accepted in the United States of America (“GAAP”), which require certain elections as to accounting policy, estimates and assumptions that affect the reported amounts of assets and liabilities, the disclosure of contingent liabilities at the dates of the financial statements and the reported amount of net revenues and expenses during the reporting periods. Significant accounting policy elections, estimates and assumptions include, among others, allowance for trade promotions. Actual results could differ from those estimates. Cash Equivalents — Cash equivalents include all highly liquid investments with original maturities of less than three months. At September 30, 2025 and 2024, the Company had $71.8 and $70.8, respectively, in available cash, of which 9.5% and 2.5%, respectively, was outside of the United States (“U.S.”). The Company’s intention is to reinvest these funds indefinitely. Restricted Cash — Restricted cash includes cash deposits which primarily serve as collateral for certain of the Company’s commodity hedging contracts. Receivables — Receivables are reported at net realizable value. This value includes appropriate allowances for credit losses, cash discounts and other amounts which the Company does not ultimately expect to collect. To calculate the allowance for credit losses, the Company estimates uncollectible amounts based on a review of past due balances, historical loss information and an evaluation of customer accounts for potential future losses. A receivable is considered past due if payments have not been received within the agreed upon invoice terms. Receivables are written off against the allowance when deemed to be uncollectible based upon the Company’s evaluation of the customer’s solvency. As of September 30, 2025 and 2024, the Company did not have off-balance sheet credit exposure related to its customers. Inventories — Inventories are generally valued at the lower of cost (determined on a first-in, first-out basis) or net realizable value. Reported amounts have been reduced by an allowance for obsolete product and packaging materials based on a review of inventories on hand compared to estimated future usage and sales. Property — Property is recorded at cost, and depreciation expense is generally provided on a straight-line basis over the estimated useful life of the property. Estimated useful lives range from 3 to 10 years for machinery and equipment; 1 to 33 years for buildings, building improvements and leasehold improvements; and 1 to 5 years for software. Total depreciation expense was $1.6, $1.5 and $1.7 in fiscal 2025, 2024 and 2023, respectively. Any gains and losses incurred on the sale or 49
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Table of Contents disposal of assets would be included in other operating income/expense in the statement of operations. Ordinary repair and maintenance costs are accounted for under the direct expensing method. Property consisted of: September 30, 2025 2024 Land and land improvements $ 0.8 $ 0.8 Buildings and leasehold improvements 5.5 4.5 Machinery and equipment 15.5 14.3 Software 1.4 1.2 Construction in progress 10.0 0.6 33.2 21.4 Accumulated depreciation (14.2) (12.2) Property, net $ 19.0 $ 9.2 As of both September 30, 2025 and 2024, the majority of the Company’s tangible long-lived assets were located in Europe and had a net carrying value of $13.5 and $8.1, respectively; the remainder were located in the U.S. Goodwill — Goodwill represents the excess of the cost of acquired businesses over the fair market value of their identifiable net assets. The Company conducts a goodwill impairment assessment during the fourth quarter of each fiscal year following the annual forecasting process, or more frequently if facts and circumstances indicate that goodwill may be impaired. The goodwill impairment assessment performed may be either qualitative or quantitative; however, if adverse qualitative trends are identified that could negatively impact the fair value of the business, a quantitative goodwill impairment test is performed. The goodwill impairment qualitative assessment requires an analysis to determine if it is more likely than not that the fair value of a reporting unit is less than its carrying amount. The qualitative goodwill impairment test requires an entity to evaluate various events, circumstances and factors, such as macroeconomic conditions, sensitivity of valuation inputs utilized in the Company’s most recent quantitative goodwill impairment test, industry trends and results of operations of the entity, to determine whether it is more likely than not that the fair value of a reporting unit is less than its carrying amount. Metrics such as the gross domestic product growth rate and inflation rate, the discount rate and the terminal growth rate utilized in previous quantitative goodwill impairment tests, peer multiples and category trends and actual results compared to forecast are evaluated by management to identify adverse trends that could negatively impact the fair value of the reporting unit. If adverse qualitative trends are identified that could negatively impact the fair value of a reporting unit, a quantitative goodwill impairment test is performed. The quantitative goodwill impairment test requires an entity to compare the fair value of each reporting unit with its carrying amount. The estimated fair value is determined using a combined income and market approach with a greater weighting on the income approach. The income approach is based on discounted future cash flows and requires significant assumptions, including estimates regarding future revenue, profitability, capital requirements and discount rate. The market approach is based on a market multiple (revenue and EBITDA, which stands for earnings before interest, income taxes, depreciation and amortization) and requires an estimate of appropriate multiples based on market data. The Company has two reporting units, which have been identified at a level below the operating segment level; however, only one reporting unit had a goodwill balance as of September 30, 2025, 2024 and 2023. In fiscal 2025, 2024 and 2023, the Company performed a qualitative impairment test and determined there were no indicators, including adverse trends in the business, that would indicate it was more likely than not that the fair value of the reporting unit was less than its carrying amount. The Company last performed a quantitative impairment test in fiscal 2019. The Company did not record a goodwill impairment charge during the years ended September 30, 2025, 2024 or 2023, as the reporting unit with goodwill passed the qualitative impairment test. The components of “Goodwill” on the Consolidated Balance Sheets at both the beginning and end of the years ended September 30, 2025 and 2024 are presented in the following table. Goodwill, gross $ 180.7 Accumulated impairment losses (114.8) Goodwill $ 65.9 50
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Table of Contents Intangible Assets — Intangible assets consist primarily of definite-lived customer relationships, trademarks and brands. Amortization expense related to definite-lived intangible assets, which is provided on a straight-line basis (as it approximates the economic benefit) over the estimated useful lives of the assets, was $17.0, $35.0 and $26.6 in fiscal 2025, 2024 and 2023, respectively. For the definite-lived intangible assets recorded as of September 30, 2025, amortization expense is expected to be $17.0 per year for fiscal 2026 through fiscal 2030. Intangible assets consisted of: September 30, 2025 September 30, 2024 CarryingAmount AccumulatedAmortization NetAmount CarryingAmount AccumulatedAmortization NetAmount Customer relationships $ 160.8 $ (103.4) $ 57.4 $ 160.7 $ (94.6) $ 66.1 Trademarks and brands 164.5 (96.9) 67.6 164.4 (88.7) 75.7 Other intangible assets 3.1 (3.1) — 3.1 (3.1) — Intangible assets, net $ 328.4 $ (203.4) $ 125.0 $ 328.2 $ (186.4) $ 141.8 In August 2023, the Company approved a plan to discontinue the PowerBar business in North America. In connection with the discontinuance, the Company updated the useful lives of the customer relationships and trademark associated with the PowerBar business in North America to reflect the remaining period in which the Company expected to sell existing PowerBar product inventory in North America. Accelerated amortization of $17.4 and $7.1 was recorded during the years ended September 30, 2024 and 2023, respectively, resulting from the updated useful lives of the customer relationships and trademark associated with the PowerBar business in North America, which were fully amortized and written off as of September 30, 2024. Recoverability of Assets — The Company continually evaluates whether events or circumstances have occurred which might impair the recoverability of the carrying value of its assets, including property, identifiable intangibles, goodwill and right-of-use (“ROU”) assets. Definite-lived assets (groups) are tested for recoverability whenever events or changes in circumstances indicate that the carrying amount of an asset (group) may not be recoverable or the estimated useful life is no longer appropriate. The Company groups assets at the lowest level for which cash flows are separately identifiable. If circumstances require that a definite-lived asset (group) be tested for possible impairment, the Company will compare the undiscounted cash flows expected to be generated by the asset (group) to the carrying amount of the asset (group). If the carrying amount of the asset (group) is not recoverable on an undiscounted cash flow basis, an impairment is recognized to the extent that the carrying amount of the asset (group) exceeds its fair value. There were no impairments recorded on the Company’s definite- lived assets (groups) in fiscal 2025, 2024 or 2023. Derivative Financial Instruments — In the ordinary course of business, the Company is exposed to commodity price risks relating to the purchase of raw materials and supplies, interest rate risks relating to variable rate debt and foreign currency exchange rate risks. The Company may utilize derivative instruments, including futures contracts, option contracts and swaps to manage certain of these exposures by hedging when it is practical to do so. The Company does not hold or issue financial instruments for speculative or trading purposes. The Company’s derivative programs may include strategies that qualify and strategies that do not qualify for hedge accounting treatment. To qualify for hedge accounting, the hedging relationship, both at inception of the hedge and on an ongoing basis, is expected to be highly effective in achieving offsetting changes in the fair value of the hedged risk during the period that the hedge is designated. All derivatives are recognized on the balance sheet at fair value. The Company does not have any derivatives currently designated as hedging instruments under Accounting Standards Codification (“ASC”) Topic 815, “Derivatives and Hedging.” The derivatives currently held by the Company are considered natural hedging instruments, where changes in their fair values act as economic offsets to changes in fair values of the underlying hedged items and are not designated for hedge accounting. Changes in the fair value of derivatives currently held by the Company are recognized immediately in the Consolidated Statements of Operations and any associated cash flows are classified in the same category on the Consolidated Statements of Cash Flows on a basis consistent with the nature of the instruments. Leases — The Company leases office space, certain warehouses and equipment primarily through operating lease agreements. The Company has no finance lease agreements. The Company determines if an arrangement is a lease at its inception. When the arrangements include lease and non-lease components, the Company accounts for them as a single lease component. Leases with an initial term of less than 12 months are not reported on the balance sheet, but rather are recognized as lease expense on a straight-line basis over the lease term. Arrangements may include options to extend or terminate the lease arrangement. These options are included in the lease term used to establish ROU assets and lease liabilities when it is reasonably certain they will be exercised. The Company will reassess expected lease terms based on changes in circumstances that indicate options may be more or less likely to be exercised. 51
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Table of Contents The Company has certain lease arrangements that include variable rental payments. The future variability of these payments and adjustments are unknown and therefore are not included in minimum rental payments used to determine ROU assets and lease liabilities. The Company has lease arrangements where it makes separate payments to the lessor based on the lessor's common area maintenance expenses, property and casualty insurance costs, property taxes assessed on the property and other variable expenses. As the Company has elected the practical expedient not to separate lease and non-lease components, these variable amounts are captured in operating lease expense in the period in which they are incurred. Variable rental payments are recognized in the period in which the associated obligation is incurred. For lease arrangements that do not provide an implicit interest rate, an incremental borrowing rate (“IBR”) is applied in determining the present value of future payments. The Company’s IBR is selected based upon information available at the lease commencement date. ROU assets are recorded as “Other assets,” and lease liabilities are recorded as “Other current liabilities” and “Other liabilities” on the Consolidated Balance Sheets. Operating lease expense is recognized on a straight-line basis over the lease term and is included in “Selling, general and administrative expenses” in the Consolidated Statements of Operations. Revenue — The Company recognizes revenue when performance obligations have been satisfied by transferring control of the goods to customers. Control is generally transferred upon delivery of the goods to the customer. At the time of delivery, the customer is invoiced using previously agreed-upon credit terms. Shipping and/or handling costs that occur before the customer obtains control of the goods are deemed fulfillment activities and are accounted for as fulfillment costs. The Company’s contracts with customers generally contain one performance obligation. Many of the Company’s contracts with customers include some form of variable or fixed consideration. The most common forms of variable and fixed consideration are trade promotions, rebates and discount programs. As of September 30, 2025 and 2024, these programs resulted in an allowance for trade promotions of $48.6 and $38.8, respectively, which were recorded as a reduction of “Receivables, net” on the Consolidated Balance Sheets. Variable consideration is treated as a reduction of revenue at the time product revenue is recognized. Methodologies for determining these provisions are dependent on specific customer pricing and promotional practices, which range from contractually fixed percentage price reductions to reimbursement based on actual occurrence or performance. The Company does not believe that there will be significant changes to its estimates of variable consideration when any uncertainties are resolved with customers. The Company reviews and updates estimates of variable consideration each period. Uncertainties related to the estimates of variable consideration are resolved in a short time frame and do not require any additional constraint on variable consideration. The majority of trade promotions are redeemed in the form of invoice credits against trade receivables. The Company’s products are sold with no right of return, except in the case of goods which do not meet product specifications or are damaged. No services beyond this assurance-type warranty are provided to customers. Customer remedies include either a cash refund or an exchange of the product. As a result, the right of return and related refund liability is estimated and recorded as a reduction of revenue based on historical sales return experience. Cost of Goods Sold — Cost of goods sold includes, among other things, inbound and outbound freight costs and depreciation expense related to assets used in production, while storage and other warehousing costs are included in “Selling, general and administrative expenses” in the Consolidated Statements of Operations. Storage and other warehousing costs totaled $37.3, $25.3 and $20.1 in fiscal 2025, 2024 and 2023, respectively. Advertising — Advertising costs are expensed as incurred, except for costs of producing media advertising such as television commercials or magazine and online advertisements, which are deferred until the first time the advertising takes place and amortized over the period the advertising runs. These amounts were reported within “Prepaid expenses and other current assets” on the Consolidated Balance Sheets and were immaterial as of both September 30, 2025 and 2024. Stock-based Compensation — The Company recognizes the cost of employee services received in exchange for awards of equity instruments based on the grant-date fair value of the equity award. The cost for an equity award is recognized ratably over the period during which an employee is required to provide service in exchange for the award — the requisite service period (usually the vesting period). Any forfeitures of stock-based awards are recorded as they occur. Income Tax Expense — Income tax expense is estimated based on income taxes in each jurisdiction and includes the effects of both current tax exposures and the temporary differences resulting from differing treatment of items for tax and financial reporting purposes. These temporary differences result in deferred tax assets and liabilities. A valuation allowance is established against the related deferred tax assets to the extent that it is not “more likely than not” that the future benefits will be realized. Reserves are recorded for estimated exposures associated with the Company’s tax filing positions, which are subject to periodic audits by governmental taxing authorities. Interest incurred due to an underpayment of income taxes is classified as income tax expense. 52
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Table of Contents NOTE 3 — RECENTLY ISSUED AND ADOPTED ACCOUNTING STANDARDS The Company has considered all new accounting pronouncements and has concluded there are no new pronouncements (other than the ones described below) that had or will have a material impact on the Company’s results of operations, comprehensive income, financial condition, cash flows, stockholders’ equity or related disclosures based on current information. Recently Issued In September 2025, the Financial Accounting Standards Board (the “FASB”) issued Accounting Standards Update (“ASU”) 2025-06, “Intangibles — Goodwill and Other — Internal-Use Software (Subtopic 350-40): Targeted Improvements to the Accounting for Internal-Use Software.” This ASU is effective for fiscal years beginning after December 15, 2027 (i.e., the Company’s annual financial statements for the year ended September 30, 2029), with early adoption permitted. This ASU can be adopted either (i) prospectively, (ii) using a modified transition approach or (iii) retrospectively. The Company is currently evaluating the impact of this standard. In November 2024, the FASB issued ASU 2024-03, “Income Statement — Reporting Comprehensive Income — Expense Disaggregation Disclosures (Subtopic 220-40): Disaggregation of Income Statement Expenses.” This ASU is effective for fiscal years beginning after December 15, 2026 (i.e., the Company’s annual financial statements for the year ended September 30, 2028) and for interim periods within fiscal years beginning after December 15, 2027 (i.e., the Company’s interim financial statements for the three months ended December 31, 2028), with early adoption permitted. This ASU can be adopted either (i) prospectively to financial statements issued for reporting periods after the effective date of the ASU or (ii) retrospectively to any or all prior periods presented in the financial statements. The Company is currently evaluating the impact of this standard. In December 2023, the FASB issued ASU 2023-09, “Income Taxes (Topic 740): Improvements to Income Tax Disclosures.” This ASU is effective for fiscal years beginning after December 15, 2024 (i.e., the Company’s annual financial statements for the year ended September 30, 2026), with early adoption permitted. This ASU should be adopted prospectively; however, retrospective adoption is permitted. The Company is currently evaluating the impact of this standard. Recently Adopted In November 2023, the FASB issued ASU 2023-07, “Segment Reporting (Topic 280): Improvements to Reportable Segment Disclosures,” which expands annual and interim disclosure requirements for reportable segments, primarily through enhanced disclosures about significant segment expenses. The Company adopted this ASU in the fourth quarter of fiscal 2025 and the updated disclosures were applied retrospectively for all periods presented (see Note 17). There were no other impacts of this standard to the Company’s financial statements. NOTE 4 — REVENUE The following table presents net sales by product. Year Ended September 30, 2025 2024 2023 Shakes $ 1,892.9 $ 1,618.8 $ 1,320.2 Powders 366.5 326.7 289.7 Other 57.2 50.7 56.9 Net Sales $ 2,316.6 $ 1,996.2 $ 1,666.8 The Company’s revenues were primarily generated by sales within the U.S.; foreign sales were 11.9%, 10.8% and 10.5% of total fiscal 2025, 2024 and 2023 net sales, respectively. The largest concentration of foreign sales in fiscal 2025, 2024 and 2023 was within Canada, which accounted for 35.6%, 37.7% and 40.8% of total foreign sales, respectively. Three customers individually accounted for more than 10% of total net sales in each of the years ended September 30, 2025, 2024 and 2023. One customer accounted for 34.3%, 35.8% and 33.9% of total net sales in the years ended September 30, 2025, 2024 and 2023, respectively. A second customer accounted for 27.5%, 27.3% and 30.0% of total net sales in the years ended September 30, 2025, 2024 and 2023, respectively. A third customer accounted for 12.2%, 11.7% and 11.4% of total net sales in the years ended September 30, 2025, 2024 and 2023, respectively. NOTE 5 — RELATED PARTY TRANSACTIONS Transactions between the Company and Post Holdings, Inc. (“Post”) were considered related party transactions as certain of the Company’s directors serve as officers and/or directors of Post. 53
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Table of Contents MSA Fees and Royalties The Company uses certain functions and services performed by Post under a master services agreement (the “MSA”). These functions and services include finance, internal audit, treasury, information technology support, insurance and tax matters, the use of office and/or data center space, tax compliance services and, prior to January 2025, payroll processing services. During the years ended September 30, 2025, 2024 and 2023, MSA fees were $3.0, $3.4 and $4.0, respectively. MSA fees were reported in “Selling, general and administrative expenses” in the Consolidated Statements of Operations. The Company licenses certain intellectual property to and from Post and its subsidiaries based upon prices governed by agreements between the Company and Post and its subsidiaries, consistent with prices of similar arm's-length transactions. During each of the years ended September 30, 2025, 2024 and 2023, royalties paid to and received from Post and its subsidiaries were immaterial. Co-Packing Agreement Premier Nutrition Company, LLC (“Premier Nutrition”), a subsidiary of the Company, has a co-packing agreement with Comet Processing, Inc. (“Comet”), a wholly-owned subsidiary of Post (the “Co-Packing Agreement”). Under the Co-Packing Agreement, Premier Nutrition procures certain packaging materials for Comet that Comet utilizes in the production of RTD shakes for Premier Nutrition. Comet began manufacturing RTD shakes in December 2023. The Company purchased $62.2 and $8.6 of RTD shakes from Comet during the years ended September 30, 2025 and 2024, respectively. There were no purchases of RTD shakes manufactured by Comet during fiscal 2023. As of September 30, 2025 and 2024, the Company had current payables with Post of $3.7 and $1.5, respectively, related to RTD shake purchases and MSA fees, which were included in “Accounts payable” on the Consolidated Balance Sheets. Current receivables with Post at both September 30, 2025 and 2024 were immaterial. NOTE 6 — INCOME TAXES The expense (benefit) for income taxes consisted of the following: Year Ended September 30, 2025 2024 2023 Current: Federal $ 74.3 $ 73.1 $ 49.1 State 19.2 17.8 10.9 Foreign (0.3) 0.7 0.9 93.2 91.6 60.9 Deferred: Federal (16.7) (7.1) (4.9) State (3.7) (1.6) (1.1) (20.4) (8.7) (6.0) Income tax expense $ 72.8 $ 82.9 $ 54.9 The effective income tax rate for fiscal 2025, 2024 and 2023 was 25.2%, 25.2% and 24.9%, respectively. The following table presents the reconciliation of income tax expense with amounts computed at the federal statutory tax rate. Year Ended September 30, 2025 2024 2023 Computed tax at federal statutory rate (21%) $ 60.7 $ 69.2 $ 46.3 State income taxes, net of effect on federal tax 12.6 13.5 8.4 Non-deductible compensation 5.6 3.2 1.9 Other, net (none in excess of 5% of computed tax) (6.1) (3.0) (1.7) Income tax expense $ 72.8 $ 82.9 $ 54.9 54
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Table of Contents Deferred income taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. Deferred tax non-current assets (liabilities) were as follows: September 30, 2025 September 30, 2024 Assets Liabilities Net Assets Liabilities Net Accrued liabilities $ 26.4 $ — $ 26.4 6.7 — 6.7 Accrued vacation, incentive and severance 4.1 — 4.1 5.0 — 5.0 Capitalized research and development 8.6 — 8.6 4.7 — 4.7 Inventory 4.5 — 4.5 4.2 — 4.2 Stock-based compensation awards 2.3 — 2.3 3.0 — 3.0 Lease liabilities 6.0 — 6.0 1.0 — 1.0 Intangible assets — (13.1) (13.1) — (10.9) (10.9) ROU assets — (6.0) (6.0) — (1.0) (1.0) Property — (0.4) (0.4) — (0.2) (0.2) Other items — (0.4) (0.4) — — — Total deferred income taxes $ 51.9 $ (19.9) $ 32.0 $ 24.6 $ (12.1) $ 12.5 No provision has been made for income taxes on undistributed earnings of consolidated foreign subsidiaries of $3.0 and $4.2 at September 30, 2025 and 2024, respectively, as it is the Company’s intention to indefinitely reinvest undistributed earnings of its foreign subsidiaries. Any additional income taxes and applicable foreign withholding taxes that would be payable on the remittance of such undistributed earnings would be immaterial. For fiscal 2025, 2024 and 2023, foreign (loss) income before income taxes was $(1.5), $2.0 and $2.0, respectively. Unrecognized Tax Benefits The Company recognizes the tax benefit from uncertain tax positions only if it is “more likely than not” that the tax position will be sustained on examination by the taxing authorities. The tax benefits recognized from such positions are measured based on the largest benefit that has a greater than 50% likelihood of being realized upon ultimate settlement. To the extent the Company’s assessment of such tax positions changes, the change in estimate will be recorded in the period in which the determination is made. At September 30, 2025 and 2024, the Company had net unrecognized tax benefits of $1.3 and $1.4, respectively. There was no material unrecognized tax benefits activity during the years ended September 30, 2025, 2024 or 2023. The amount of the net unrecognized tax benefits that, if recognized, would directly affect the effective tax rate was $1.3 at September 30, 2025. No material changes to unrecognized tax benefits at September 30, 2025 are expected to be recognized within the next twelve months. The Company computes tax-related interest and penalties as the difference between the tax position recognized for financial reporting purposes and the amount previously taken on the Company’s tax returns and classifies these amounts as components of income tax (benefit) expense. During each of the years ended September 30, 2025, 2024 and 2023, expenses recorded related to interest and penalties were immaterial, and the Company had immaterial interest and penalty accruals at both September 30, 2025 and 2024. U.S. federal, U.S. state and foreign jurisdiction income tax returns for the tax years ended September 30, 2022 through September 30, 2024 are generally open and subject to examination by the tax authorities in each respective jurisdiction. Tax Legislation On July 4, 2025, the H.R.1 tax law was enacted in the U.S. (the “H.R.1 Tax Act”). The H.R.1 Tax Act includes provisions, such as the permanent extension of certain expiring provisions of the Tax Cuts and Jobs Act of 2017, modifications to the international tax framework and the restoration of favorable tax treatment for certain business provisions. The H.R.1 Tax Act has multiple effective dates, beginning in calendar year 2025 and extending through calendar year 2027. The H.R.1 Tax Act did not have a material impact on the Company’s effective income tax rate, results of operations, financial condition or cash flows during the year ended September 30, 2025. 55
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Table of Contents NOTE 7 — EARNINGS PER SHARE Basic earnings per share is based on the average number of shares of common stock outstanding during the year. Diluted earnings per share is based on the average number of shares of common stock used for the basic earnings per share calculation, adjusted for the dilutive effect of stock options and restricted stock units using the “treasury stock” method. The following table sets forth the computation of basic and diluted earnings per share. Year Ended September 30, 2025 2024 2023 Net earnings $ 216.2 $ 246.5 $ 165 shares in millions Weighted-average shares for basic earnings per share 126.9 130.3 133 Effect of dilutive securities: Stock options 0.2 0.2 0 Restricted stock units 0.3 0.3 0 Performance-based restricted stock units 1.1 1.5 0 Weighted-average shares for diluted earnings per share 128.5 132.3 134 Basic earnings per share $ 1.70 $ 1.89 $ 1.2 Diluted earnings per share $ 1.68 $ 1.86 $ 1.2 The following table details the securities that have been excluded from the calculation of weighted-average shares for diluted earnings per share as they were anti-dilutive. Year Ended September 30, shares in millions 2025 2024 2023 Restricted stock units 0.1 — 0.1 Performance-based restricted stock units — — 0.1 NOTE 8 — SUPPLEMENTAL OPERATIONS STATEMENT AND CASH FLOW INFORMATION Year Ended September 30, 2025 2024 2023 Advertising expenses $ 75.2 $ 61.3 $ 40.9 Research and development expenses 16.0 14.3 12.0 Interest paid 68.3 59.6 66.6 Income taxes paid 89.1 93.2 60.9 56
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Table of Contents NOTE 9 — SUPPLEMENTAL BALANCE SHEET INFORMATION September 30, 2025 2024 Receivables, net Trade $ 205.6 $ 205.6 Other 18.2 15.1 223.8 220.7 Allowance for credit losses (0.4) (0.3) $ 223.4 $ 220.4 Inventories Raw materials and supplies $ 88.3 $ 57.3 Work in process 0.1 — Finished products 242.0 228.8 $ 330.4 $ 286.1 Accounts Payable Trade $ 115.1 $ 119.1 Related party 3.7 1.5 Other 0.7 0.4 $ 119.5 $ 121.0 Other Current Liabilities Accrued legal matters $ 90.0 $ 21.0 Accrued compensation 19.9 23.8 Derivative liabilities 12.6 0.1 Advertising and promotion 9.7 8.1 Other 31.1 29.7 $ 163.3 $ 82.7 NOTE 10 — LEASES The Company leases office space, certain warehouses and equipment primarily through operating lease agreements. The Company has no finance lease agreements. Leases have remaining terms which range from less than 1 year to 12 years and most leases provide the Company with the option to exercise one or more renewal terms. The following table presents the balance sheet location of the Company’s operating leases. September 30, 2025 2024 ROU assets: Other assets $ 26.2 $ 5.8 Lease liabilities: Other current liabilities $ 2.6 $ 2.2 Other liabilities 26.9 4.3 Total liabilities $ 29.5 $ 6.5 57
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Table of Contents Future minimum payments of the Company’s operating lease liabilities as of September 30, 2025 are presented in the following table. Fiscal 2026 $ 3.2 Fiscal 2027 4.1 Fiscal 2028 5.3 Fiscal 2029 5.4 Fiscal 2030 5.5 Thereafter 34.8 Total future minimum payments 58.3 Less: Implied interest 19.2 Less: Tenant improvement allowance 9.6 Total lease liabilities $ 29.5 The following table presents supplemental information related to the Company’s operating leases. Year Ended September 30, 2025 2024 2023 Total operating lease expense $3.9 $3.4 $3.1 Variable lease expense 1.3 1.0 0.9 Weighted-average remaining lease term 10 years 4 years 4 years Weighted-average incremental borrowing rate 7.0% 4.9% 4.8% Operating cash flows for amounts included in the measurement of the Company’s operating lease liabilities for the years ended September 30, 2025, 2024 and 2023 were $2.5, $2.5 and $2.4, respectively. Short-term lease expense for the years ended September 30, 2025, 2024 and 2023 was immaterial. ROU assets obtained in exchange for operating lease liabilities were $22.4 during the year ended September 30, 2025. ROU assets obtained in exchange for operating lease liabilities during the years ended September 30, 2024 and 2023 were immaterial. NOTE 11 — DERIVATIVE FINANCIAL INSTRUMENTS At September 30, 2025, the Company’s derivative instruments, none of which were designated as hedging instruments under ASC Topic 815, consisted of commodity futures and option contracts which relate to inputs that generally will be utilized within the next year. The notional amounts of the commodity contracts were $136.6 and $53.5 at September 30, 2025 and 2024, respectively. The following table presents the balance sheet location and fair value of the Company’s commodity contracts. The Company does not offset derivative assets and liabilities within the Consolidated Balance Sheets. September 30, 2025 2024 Prepaid expenses and other current assets $ — $ 2.7 Other current liabilities 12.6 0.1 The Company recognized a loss on derivatives of $18.1, $2.1 and $5.8 for the years ended September 30, 2025, 2024 and 2023, respectively, which were included in “Costs of goods sold” on the Company’s Consolidated Statements of Operations. At September 30, 2025 and 2024, the Company had cash deposits which served as pledged collateral for certain of its commodity contracts of $17.3 and $0.3, respectively, which were classified as “Restricted cash” on the Consolidated Balance Sheets. NOTE 12 — FAIR VALUE MEASUREMENTS The Company utilizes the income approach to measure fair value for its commodity derivatives using Level 2 inputs. The income approach uses pricing models that rely on market observable inputs such as yield curves and forward prices. Refer to 58
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Table of Contents Note 11 for the classification of changes in fair value of derivative assets and liabilities measured at fair value on a recurring basis within the Consolidated Statements of Operations. The Company’s financial assets and liabilities also include cash, cash equivalents and restricted cash, receivables and accounts payable for which the carrying value approximates fair value due to their short maturities (less than 12 months). The Company does not record its long-term debt at fair value on the Consolidated Balance Sheets. The fair value of any outstanding borrowings under the Revolving Credit Facility (as defined in Note 13) approximated its carrying value. Based on market rates, the fair value (Level 2) of the Company’s debt, excluding any borrowings under the Revolving Credit Facility, was $869.0 and $880.6 as of September 30, 2025 and 2024, respectively. Certain assets and liabilities, including property, goodwill and other intangible assets, are measured at fair value on a non-recurring basis using Level 3 inputs. No impairment charges were recorded for property, goodwill or other intangible assets during the years ended September 30, 2025, 2024 or 2023. NOTE 13 — LONG-TERM DEBT The following table presents the components of “Long-term debt” on the Consolidated Balance Sheets. September 30, 2025 2024 7.00% Senior Notes maturing in March 2030 $ 840.0 $ 840.0 Revolving Credit Facility 250.0 — Total principal amount of debt 1,090.0 840.0 Less: Debt issuance costs, net 5.7 6.9 Long-term debt $ 1,084.3 $ 833.1 Senior Notes On March 10, 2022, the Company issued $840.0 aggregate principal amount of 7.00% senior notes maturing in March 2030 (the “7.00% Senior Notes”). The 7.00% Senior Notes were issued at par, and the Company incurred debt issuance costs of $10.2, which were deferred and are being amortized to interest expense over the term of the 7.00% Senior Notes. Interest payments are due semi-annually each March 15 and September 15. The 7.00% Senior Notes are senior unsecured obligations of the Company and are guaranteed by the Company’s existing and subsequently acquired or organized wholly-owned domestic subsidiaries that guarantee the Credit Agreement or certain other indebtedness of the Company (other than immaterial subsidiaries, certain excluded subsidiaries and subsidiaries the Company designates as unrestricted subsidiaries). The maturity date of the 7.00% Senior Notes is March 15, 2030. Credit Agreement On March 10, 2022, the Company entered into a credit agreement (as amended, the “Credit Agreement”), which provided for a revolving credit facility in an aggregate principal amount of $250.0 (the “Revolving Credit Facility”), with commitments made available to the Company in U.S. Dollars, Euros and United Kingdom (“U.K.”) Pounds Sterling. Letters of credit are available under the Credit Agreement in an aggregate amount of up to $20.0. The Company incurred $1.5 of financing fees in connection with the Credit Agreement, which were deferred and are being amortized to interest expense over the term of the Revolving Credit Facility. On August 22, 2025, the Company entered into a First Amendment to the Credit Agreement (the “Amendment”) by and among the Company, as borrower, certain of the Company’s subsidiaries, as guarantors, JPMorgan Chase Bank, N.A. as administrative agent and each lender (as defined in the Credit Agreement). The Amendment amended the Company’s Credit Agreement to, among other matters, (i) increase the aggregate principal amount available under the Revolving Credit Facility to $500.0, (ii) extend the maturity date of the Revolving Credit Facility to August 22, 2030, provided that if on December 14, 2029, the Company’s 7.00% Senior Notes have not been redeemed in full in cash or refinanced and replaced in full with notes and/or loans maturing at least 91 days after August 22, 2030, then the maturity date of the Revolving Credit Facility will be December 14, 2029, (iii) reduce the interest rate on borrowings under the Revolving Credit Facility (as discussed below) and (iv) broaden certain exceptions to covenants contained in the Credit Agreement that would otherwise restrict certain activities by the Company, such as repurchases by the Company of its common stock. The Company incurred $2.1 of financing fees in connection with the Amendment, which were deferred and are being amortized to interest expense over the term of the Revolving Credit Facility. Following the Amendment, borrowings under the Revolving Credit Facility bear interest at an annual rate equal to: (i) in the case of loans denominated in U.S. Dollars, at the Company’s option, the base rate (as defined in the Credit Agreement) plus 59
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Table of Contents a margin which will range from 1.00% to 1.75% depending on the Company’s secured net leverage ratio (as defined in the Credit Agreement), or the term SOFR rate (as defined in the Credit Agreement) for the applicable interest period plus a margin which will range from 2.00% to 2.75% depending on the Company’s secured net leverage ratio; (ii) in the case of loans denominated in Euros, the adjusted Eurodollar rate (as defined in the Credit Agreement) for the applicable interest period plus a margin which will range from 2.00% to 2.75% depending on the Company’s secured net leverage ratio; and (iii) in the case of loans denominated in U.K. Pounds Sterling, the daily simple RFR (as defined in the Credit Agreement) plus a margin which will range from 2.00% to 2.75% depending on the Company’s secured net leverage ratio. Facility fees on the daily unused amount of commitments under the Revolving Credit Facility initially will accrue at rates ranging from 0.25% to 0.350% per annum, depending on the Company’s secured net leverage ratio. Prior to the Amendment, borrowings under the Revolving Credit Facility bore interest at an annual rate equal to: (i) in the case of loans denominated in U.S. Dollars, at the Company’s option, the base rate (as defined in the Credit Agreement) plus a margin which ranged from 2.00% to 2.75% depending on the Company’s secured net leverage ratio (as defined in the Credit Agreement), or the adjusted term SOFR rate (as defined in the Credit Agreement) for the applicable interest period plus a margin which ranged from 3.00% to 3.75% depending on the Company’s secured net leverage ratio; (ii) in the case of loans denominated in Euros, the adjusted Eurodollar rate (as defined in the Credit Agreement) for the applicable interest period plus a margin which ranged from 3.00% to 3.75% depending on the Company’s secured net leverage ratio; and (iii) in the case of loans denominated in U.K. Pounds Sterling, the adjusted daily simple RFR (as defined in the Credit Agreement) plus a margin which ranged from 3.00% to 3.75% depending on the Company’s secured net leverage ratio. Facility fees on the daily unused amount of commitments under the Revolving Credit Facility accrued at rates ranging from 0.25% to 0.375% per annum, depending on the Company’s secured net leverage ratio. During the years ended September 30, 2025, 2024 and 2023, the Company borrowed $700.0, zero and $115.0 under the Revolving Credit Facility, respectively, and repaid $450.0, $25.0 and $189.0 under the Revolving Credit Facility, respectively. As of September 30, 2025, the interest rate on the utilized portion of the Revolving Credit Facility was 6.14%, the available borrowing capacity under the Revolving Credit Facility was $247.6 and outstanding letters of credit totaled $2.4. As of September 30, 2024, there were no amounts outstanding on the Revolving Credit Facility, the available borrowing capacity under the Revolving Credit Facility was $250.0 and there were no outstanding letters of credit. Under the terms of the Credit Agreement, the Company is required to maintain a total net leverage ratio (as defined in the Credit Agreement) not to exceed 6.00:1.00, measured as of the last day of each fiscal quarter. The total net leverage ratio of the Company did not exceed this threshold as of September 30, 2025. The Credit Agreement provides for potential incremental revolving and term facilities at the Company’s request and at the discretion of the lenders or other persons providing such incremental facilities, in each case on terms to be determined, and also permits the Company to incur other secured or unsecured debt, in all cases subject to conditions and limitations as specified in the Credit Agreement. Furthermore, the Credit Agreement provides for customary events of default. Upon the occurrence and during the continuance of an event of default, the maturity of the loans under the Credit Agreement may accelerate and the administrative agent and lenders under the Credit Agreement may exercise other rights and remedies available at law or under the loan documents, including with respect to the collateral securing, and guarantees of, the Company’s obligations under the Credit Agreement. The Company’s obligations under the Credit Agreement are unconditionally guaranteed by its existing and subsequently acquired or organized direct and indirect subsidiaries (other than immaterial subsidiaries, certain excluded subsidiaries and subsidiaries the Company designates as unrestricted subsidiaries) and are secured by security interests in substantially all of the Company’s assets and the assets of its subsidiary guarantors, but excluding, in each case, real property. Estimated Future Payments As of September 30, 2025, the Company expects to make principal payments of $1,090.0 in fiscal 2030. There are no other expected principal payments on the Company’s debt for the next five fiscal years based on the debt maturity dates, and any additional future borrowings under the Revolving Credit Facility will be required to be repaid on or before the August 22, 2030 maturity date (or such earlier maturity date as discussed above) under the Credit Agreement. Estimated future interest payments on the Company’s debt through fiscal 2030 are expected to be $342.7 (with $74.8 expected in fiscal 2026) based on the interest rates at September 30, 2025. 60
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Table of Contents NOTE 14 — COMMITMENTS AND CONTINGENCIES Legal Proceedings Joint Juice Litigation In March 2013, a complaint was filed on behalf of a putative, nationwide class of consumers against Premier Nutrition in the U.S. District Court for the Northern District of California seeking monetary damages and injunctive relief. The case asserted that some of Premier Nutrition’s advertising claims regarding its Joint Juice line of glucosamine and chondroitin dietary supplement beverages, which it discontinued in the first quarter of fiscal 2023, were false and misleading. In April 2016, the district court certified a California-only class of consumers in this lawsuit (this lawsuit is hereinafter referred to as the “California Federal Class Lawsuit”). In April 2018, the district court dismissed the California Federal Class Lawsuit with prejudice. This dismissal was upheld on appeal by the U.S. Court of Appeals for the Ninth Circuit in 2020, and plaintiff’s petition for an en banc rehearing by the Ninth Circuit was denied. In September 2020, the same lead counsel re-filed the California Federal Class Lawsuit against Premier Nutrition in the California Superior Court for the County of Alameda, alleging identical claims and seeking restitution and injunctive relief on behalf of the same putative class of California consumers as the California Federal Class Lawsuit. In March 2023, the Alameda Superior Court granted in part and denied in part Premier Nutrition’s motion for judgment based on res judicata, and in May 2023, the Court reaffirmed its ruling. In July 2023, Premier Nutrition filed a petition for writ of mandamus in the California Court of Appeal, which writ was denied in March 2024. In January 2025, the plaintiff filed a motion for the application of issue preclusion arising from certain rulings in the action on behalf of New York consumers (the “New York Case”). On May 14, 2025, the court entered an order holding that issue preclusion will apply on certain issues. In 2016 and 2017, the lead plaintiff’s counsel in the California Federal Class Lawsuit filed ten additional class action complaints in the U.S. District Court for the Northern District of California on behalf of putative classes of consumers under the laws of Connecticut, Florida, Illinois, New Jersey, New Mexico, New York, Maryland, Massachusetts, Michigan and Pennsylvania (the “Related Federal Actions”). These complaints contain factual allegations similar to the California Federal Class Lawsuit, also seeking monetary damages and injunctive relief. The action on behalf of New Jersey consumers was voluntarily dismissed. Trial in the New York Case was held beginning in May 2022, and the jury delivered its verdict in favor of plaintiff in June 2022. In August 2022, the Court entered a judgment in that case in favor of plaintiff in the amount of $12.9, which includes statutory damages and prejudgment interest, and in August 2023, the Court entered a judgment awarding plaintiff $7.9 in attorneys’ fees and costs. In October 2022, each plaintiff and Premier Nutrition filed Notices of Appeal to the Ninth Circuit on the damages award and in December 2023 Premier Nutrition filed its Notice of Appeal to the Ninth Circuit on the attorneys’ fees award. In August 2024, the Court of Appeals issued an opinion on the damages award affirming the trial court’s decision on liability, vacating and remanding to the trial court for further consideration of its decision on calculated damages and reversing the trial court’s award of prejudgment interest to plaintiff. Premier Nutrition’s subsequent petition for en banc rehearing with the Ninth Circuit Court of Appeals was denied in October 2024. On January 25, 2025, the Ninth Circuit affirmed the trial court’s attorneys’ fees award. On February 3, 2025, the trial court entered an order awarding $0.9 in attorneys’ fees and costs. On March 10, 2025, the trial court entered an order again limiting statutory damages to $8.3 under the due process clause. Each plaintiff and Premier Nutrition filed Notices of Appeal to the Ninth Circuit on the damages award. On March 13, 2025, Premier Nutrition filed a certiorari petition with the United States Supreme Court seeking review of the Ninth Circuit’s merits decision. In February 2025, the court set a trial date for February 2026 in the Related Federal Action on behalf of the class of consumers in Illinois (the “Illinois Case”). Plaintiff filed a motion to apply issue preclusion from certain rulings in the New York Case to the Illinois Case. On May 2, 2025, the trial court entered an order holding that issue preclusion will apply in the Illinois Case on the issues of deceptiveness, materiality, the measure of damages, and the First Amendment, but not on the issues of causation, intent, or punitive damages. The seven other Related Federal Actions remain pending, and the court has certified individual state classes in each of those cases (except New Mexico). In January 2019, the same lead counsel filed an additional class action complaint against Premier Nutrition in California Superior Court for the County of Alameda, alleging claims similar to the above actions and seeking monetary damages and injunctive relief on behalf of a putative class of California consumers, beginning after the California Federal Class Lawsuit class period (the “California State Case”). In July 2020, the court issued an order certifying a statewide class. Premier Nutrition moved for summary judgment in July 2023, which motion was tentatively granted in part and denied in part on August 23, 2023. In January 2025, the plaintiff filed a motion for the application of issue preclusion arising from certain rulings in the New York Case decision. On May 14, 2025, the court entered an order holding that issue preclusion will apply on certain issues. On June 25, 2025, the parties reached a class-wide settlement in principle related to the Joint Juice Litigation, which includes the California Federal Class Lawsuit, all of the Related Federal Actions (except New Mexico) and the California State Case through a court- ordered settlement conference, which settlement in principle is subject to judicial approval. On June 26, 61
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Table of Contents 2025, the parties filed a joint motion with the United States Supreme Court to hold the certiorari petition in the New York Case in abeyance pending approval of the class settlement. On July 2, 2025, the parties filed a joint motion with the Ninth Circuit to hold the appeal in the New York Case in abeyance pending approval of the class settlement. On October 17, 2025, the parties executed a Stipulation of Settlement in the New York Case (the “New York Settlement”). On October 20, 2025, Plaintiff filed an unopposed motion for preliminary approval of the New York Settlement, which motion remains pending. Pursuant to the terms of the New York Settlement, if the settlement receives final approval and becomes effective, the Company will pay a total of $19.2 into a settlement fund to resolve the New York Case. The New York Settlement does not constitute an admission of liability or wrongdoing by the Company or any of its current or former directors or officers. On October 22, 2025, the parties executed a Stipulation of Settlement in the California State Case (the “Multistate Settlement”). The Multistate Settlement also encompasses the California Federal Class Lawsuit (which has been consolidated with the California State Case) and the Related Federal Actions (which will be added to the California State Case via a stipulated amended complaint pursuant to the terms of the Multistate Settlement) excluding New York and New Mexico. On October 23, 2025, Plaintiffs filed an unopposed motion for preliminary approval of the Multistate Settlement, which motion remains pending. Pursuant to the terms of the Multistate Settlement, if the settlement receives final approval and becomes effective, the Company will pay a total of $70.8 into a settlement fund to resolve the California State Case, California Federal Class Lawsuit, and Related Federal Actions excluding New York and New Mexico. The Multistate Settlement does not constitute an admission of liability or wrongdoing by the Company or any of its current or former directors or officers. On November 12, 2025, the parties entered into a confidential settlement agreement and release in the New Mexico Federal Related Action, which is not subject to court approval. Pursuant to the terms of the settlement agreement, the Company will make an immaterial payment to resolve the New Mexico action. During the years ended September 30, 2025, 2024 and 2023, the Company expensed $69.0, zero and $5.0, respectively, related to the legal matter and plaintiff legal fees in connection with the Joint Juice litigation, which was included in “Selling, general and administrative expenses” on the Consolidated Statements of Operations. At September 30, 2025 and 2024, the Company had an estimated liability of $90.0 and $21.0, respectively, related to these matters that was included in “Other current liabilities” on the Consolidated Balance Sheets. Other The Company is subject to various other legal proceedings and actions arising in the normal course of business. In the opinion of management, based upon the information presently known, the ultimate liability, if any, arising from such pending legal proceedings, as well as from asserted legal claims and known potential legal claims which are likely to be asserted, taking into account established accruals for estimated liabilities (if any), are not expected to be material individually or in the aggregate to the consolidated financial condition, results of operations or cash flows of the Company. In addition, although it is difficult to estimate the potential financial impact of actions regarding expenditures for compliance with regulatory matters, in the opinion of management, based upon the information currently available, the ultimate liability arising from such compliance matters is not expected to be material to the consolidated financial condition, results of operations or cash flows of the Company. NOTE 15 — STOCK-BASED COMPENSATION The Company’s employees participate in the Company’s long-term incentive plan (the “BellRing Long-Term Incentive Plan”). Awards issued under the BellRing Long-Term Incentive Plan have a maximum term of 10 years, provided, however, that the Corporate Governance and Compensation Committee of the Company’s Board of Directors may, in its discretion, grant awards with a longer term to participants who are located outside of the U.S. On September 12, 2024, the Company registered an additional 6.0 million shares reserved for issuance under the BellRing Long-Term Incentive Plan. At September 30, 2025 there were 6.2 million shares available to be issued for stock-based compensation awards under the BellRing Long-Term Incentive Plan. During the years ended September 30, 2025, 2024 and 2023, total compensation cost for the Company’s non-cash stock-based compensation awards recognized was $22.1, $21.0 and $14.2, respectively, and the related recognized deferred tax benefit was $1.6, $2.0 and $1.6, respectively. As of September 30, 2025, the total compensation cost related to the Company’s nonvested awards not yet recognized was $24.7, which is expected to be recognized over a weighted-average period of 0.9 years. 62
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Table of Contents Stock Options Information about stock options is summarized in the following table. $ in millions, except per share Stock Options Weighted-AverageExercisePrice PerShare Weighted-AverageRemainingContractualTerm in Years AggregateIntrinsicValue Outstanding at September 30, 2024 258,987 $ 17.74 Granted — — Exercised (11,000) 17.30 Forfeited — — Expired — — Outstanding at September 30, 2025 247,987 17.76 4.83 $ 4.6 Vested and expected to vest as of September 30, 2025 247,987 17.76 4.83 4.6 Exercisable at September 30, 2025 247,987 17.76 4.83 4.6 There were no stock options granted during the years ended September 30, 2025, 2024 or 2023. The total intrinsic value of stock options exercised was $0.2 in the year ended September 30, 2025, and the Company received proceeds from the exercise of stock options of $0.2 during the year ended September 30, 2025. There were no stock options exercised during the years ended September 30, 2024 or 2023. Restricted Stock Units (“RSUs”) Information about RSUs is summarized in the following table. RSUs Weighted-AverageGrant Date FairValue Per Share Nonvested at September 30, 2024 433,260 $ 36.63 Granted 132,824 69.67 Vested (198,417) 31.04 Forfeited (17,972) 39.77 Nonvested at September 30, 2025 349,695 42.48 The grant date fair value of each RSU was determined based upon the closing price of the Company’s common stock on the date of grant. The weighted-average grant date fair value of nonvested RSUs was $42.48, $36.63 and $24.06 at September 30, 2025, 2024 and 2023, respectively. The total vest date fair value of RSUs that vested during fiscal 2025, 2024 and 2023 was $14.4, $11.8 and $7.8, respectively. Performance Restricted Stock Units (“PRSUs”) Information about PRSUs is summarized in the following table. PRSUs Weighted-AverageGrant Date FairValue Per Share Nonvested at September 30, 2024 773,194 $ 53.79 Granted 85,818 129.89 Adjustment for performance achievement (a) 600,351 n/a Vested (975,570) 41.44 Forfeited — — Nonvested at September 30, 2025 483,793 77.47 (a) Represents the adjustment to previously granted PRSUs for performance achievement. 63
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Table of Contents The Company grants PRSUs to certain employees and directors. These awards will be earned by comparing the Company’s total shareholder return (“TSR”) during a period of approximately three years to the respective TSRs of companies in a performance peer group. Based upon the Company’s ranking in its performance peer group when comparing TSRs, a recipient of the PRSU grant may earn a total award ranging from 0% to 260% of the target award. The fair value of each PRSU was estimated on the grant date using a Monte Carlo simulation. The total vest date fair value of PRSUs that vested during fiscal 2025 was $75.6. No PRSUs vested during fiscal 2024 or 2023. The weighted-average assumptions for PRSUs granted during the years ended September 30, 2025, 2024 and 2023 are summarized in the table below. 2025 2024 2023 Expected term 3 years 3 years 3 years Expected stock price volatility 36.5% 39.4% 46.8% Risk-free interest rate 4.1% 4.7% 4.1% Expected dividends —% —% —% Fair value (per PRSU) $129.89 $81.42 $45.26 NOTE 16 — STOCKHOLDERS’ DEFICIT The following table summarizes the Company’s repurchases of its common stock. Year Ended September 30, 2025 2024 2023 Shares repurchased (in millions) 9.0 2.6 4.2 Average price per share (a) $ 52.62 $ 56.12 $ 29.56 Total share repurchase cost (b) $ 476.6 $ 148.0 $ 126.3 (a) Average price per share excludes accrued excise tax and broker’s commissions, which are included in “Total share repurchase cost” within this table. (b) “Purchases of treasury stock” in the Consolidated Statements of Cash Flows for the year ended September 30, 2025 excluded $3.9 of accrued excise tax that had not been paid as of September 30, 2025 and included $2.2 of accrued excise tax payments that had been accrued for in prior fiscal years. “Purchases of treasury stock” in the Consolidated Statements of Cash Flows for the years ended September 30, 2024 and 2023 excluded $1.4 and $0.8, respectively, of accrued excise tax that had not been paid as of September 30, 2024 and 2023, respectively. NOTE 17 — SEGMENTS The Company manages its operations on a consolidated basis through one operating and reportable segment. The accounting policies of the segment are the same as those described in the summary of significant accounting policies (see Note 2). The Company’s Chief Operating Decision Maker (“CODM”) is the President and Chief Executive Officer of BellRing. The CODM utilizes consolidated single-segment net earnings (reported on the Consolidated Statements of Operations as “Net Earnings”) to evaluate financial performance, allocate resources and forecast future period financial results. The CODM evaluates performance by comparing actual to budgeted results and utilizes this information to decide whether to reinvest into the segment or into other parts of the entity, such as for acquisitions or to repurchase shares. The measure of segment assets is reported on the Consolidated Balance Sheets as “Total Assets”. 64
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Table of Contents The following table presents net sales, the significant expense categories reviewed by the CODM and net earnings of the Company. Year Ended September 30, 2025 2024 2023 Net Sales $ 2,316.6 $ 1,996.2 $ 1,666.8 Less: Cost of goods sold 1,546.2 1,288.9 1,136.6 Advertising expenses 75.2 61.3 40.9 Amortization of intangible assets 17.0 35.0 26.6 Other segment expenses (a) 320.8 223.3 175.4 Interest expense, net 68.4 58.3 66.9 Income tax expense 72.8 82.9 54.9 Net Earnings $ 216.2 $ 246.5 $ 165.5 (a) Other segment expenses includes employee-related expenses, marketing and distribution, research and development, outside professional services, depreciation and other general expenses. ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE Not applicable. ITEM 9A. CONTROLS AND PROCEDURES Evaluation of Disclosure Controls and Procedures Our management, with our Chief Executive Officer (“CEO”) and Chief Financial Officer (“CFO”) of the Company, has evaluated the effectiveness of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) as of September 30, 2025. Based on that evaluation, our CEO and CFO concluded that, as of September 30, 2025, the Company’s disclosure controls and procedures were effective to provide reasonable assurance of achieving the desired control objectives. Management's Report on Internal Control Over Financial Reporting Our management is responsible for establishing and maintaining adequate internal control over financial reporting as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act. Our internal control over financial reporting is 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. As of September 30, 2025, management conducted an assessment of the effectiveness of the Company’s internal control over financial reporting based upon the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control - Integrated Framework (2013). Based on management’s assessment utilizing these criteria, our management concluded that, as of September 30, 2025, our internal control over financial reporting was effective. The effectiveness of our internal control over financial reporting as of September 30, 2025 has been audited by PricewaterhouseCoopers LLP, an independent registered public accounting firm, as stated in its report, which appears herein. Changes in Internal Control Over Financial Reporting Based on management’s evaluation, there were no changes in our internal control over financial reporting that occurred during the quarter ended September 30, 2025 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting. 65
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Table of Contents ITEM 9B. OTHER INFORMATION Rule 10b5-1 and Non-Rule 10b5-1 Trading Arrangements During the three months ended September 30, 2025, our directors or officers, as defined in Rule 16a-1(f) under the Securities Exchange Act of 1934, as amended, adopted or terminated the “Rule 10b5-1 trading arrangements” as defined in Item 408 of Regulation S-K, set forth in the table below: Type of Trading Arrangement Name and Position Date Action Rule 10b5-1* Duration of Plan Total Shares of Common Stock to be Sold Darcy H. Davenport President and Chief Executive Officer 8/7/2025 Terminate X 2/26/2025 to 2/26/2026 Up to 59,200 Craig L. Rosenthal Chief Legal Officer and Chief Compliance Officer 8/7/2025 Terminate X 6/7/2025 to 6/7/2026 Up to 13,273 Robin Singh Chief Supply Chain Officer 8/20/2025 Adopt X 8/20/2025 to 8/20/2026 Up to 2,500 * Contract, instruction, or written plan intended to satisfy the affirmative defense conditions of Rule 10b5-1(c) under the Exchange Act. ITEM 9C. DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS Not applicable. 66
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Table of Contents PART III ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE Information under the headings “Election of Directors,” “Corporate Governance - Board Meetings and Committees,” “Corporate Governance - Nomination Process for Election of Directors,” and “Security Ownership of Certain Stockholders - Delinquent Section 16(a) Reports” in our Proxy Statement for the 2026 Annual Meeting of Stockholders to be filed with the Securities and Exchange Commission within 120 days of the year ended September 30, 2025 (the “2026 Proxy Statement”) is hereby incorporated by reference. Information regarding executive officers of the Company is included in the “Information about our Executive Officers” section under “Business” in Item 1 of this report. The Company has adopted a code of ethics, our Code of Conduct, applicable to our directors, officers and employees, which sets forth the Company’s expectations for the conduct of business by our directors, officers and employees. The Code of Conduct is available on the Company’s website at www.bellring.com. In the event the Company amends the Code of Conduct or waivers of compliance are granted and it is determined that such amendments or waivers are subject to the disclosure provisions of Item 5.05 of Form 8-K, the Company will post such amendments or waivers on its website or in a report on Form 8-K. ITEM 11. EXECUTIVE COMPENSATION The information required by this Item, appearing under the headings “Compensation of Officers and Directors,” “Compensation Committee Interlocks and Insider Participation” and “Corporate Governance and Compensation Committee Report” in the 2026 Proxy Statement, is hereby incorporated by reference. The information contained in “Corporate Governance and Compensation Committee Report” in the 2026 Proxy Statement shall not be deemed to be “filed” with the Securities and Exchange Commission or subject to the liabilities of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), except to the extent that the Company specifically incorporates such information into a document filed under the Securities Act of 1933, as amended, or the Exchange Act. ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS The information required by this Item, appearing under the headings “Security Ownership of Certain Stockholders” and “Compensation of Officers and Directors - Equity Compensation Plan Information” in the 2026 Proxy Statement, is hereby incorporated by reference. ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE The information required by this Item, appearing under the headings “Certain Relationships and Related Transactions” and “Corporate Governance - Director Independence and Role of the Independent Lead Director” in the 2026 Proxy Statement, is hereby incorporated by reference. ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES The information required by this Item, appearing under the heading “Ratification of Appointment of Independent Registered Public Accounting Firm” in the 2026 Proxy Statement, is hereby incorporated by reference. 67
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Table of Contents PART IV ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES Documents filed as a part of this report: 1. Financial Statements. The following are filed as a part of this document under Item 8. • Report of Independent Registered Public Accounting Firm • Consolidated Statements of Operations for the years ended September 30, 2025, 2024 and 2023 • Consolidated Statements of Comprehensive Income for the years ended September 30, 2025, 2024 and 2023 • Consolidated Balance Sheets at September 30, 2025 and 2024 • Consolidated Statements of Cash Flows for the years ended September 30, 2025, 2024 and 2023 • Consolidated Statements of Stockholders’ Deficit for the years ended September 30, 2025, 2024 and 2023 • Notes to Consolidated Financial Statements 2. Financial Statement Schedules. None. Schedules not included have been omitted because they are not applicable or not material or the required information is shown in the financial statements or notes thereto. 3. Exhibits. See the following Exhibit Index. 68
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Table of Contents Exhibit No Description *2.1 Transaction Agreement and Plan of Merger, dated as of October 26, 2021, by and among Post Holdings, Inc.,BellRing Brands, Inc., BellRing Distribution, LLC and BellRing Merger Sub Corporation (Incorporated byreference to Exhibit 2.1 to the Company’s Form 8-K filed on October 27, 2021) 2.2 Amendment No. 1 to Transaction Agreement and Plan of Merger, dated as of February 28, 2022, by and amongPost Holdings, Inc., BellRing Brands, Inc., BellRing Distribution, LLC and BellRing Merger Sub Corporation(Incorporated by reference to Exhibit 2.1 to the Company’s Form 8-K filed on February 28, 2022) 3.1 BellRing Brands, Inc. Restated Certificate of Incorporation (Incorporated by reference to Exhibit 3.1 to theCompany’s Form 8-K filed on January 31, 2025) 3.2 BellRing Brands, Inc. amended and restated Bylaws (Incorporated by reference to Exhibit 3.2 to the Company’sForm 8-K filed on January 31, 2025) *4.1 Indenture, dated March 10, 2022, by and among BellRing Brands, Inc. (formerly BellRing Distribution, LLC)and Computershare Trust Company, N.A., as trustee (Incorporated by reference to Exhibit 4.1 to the Company’sSecond Form 8-K filed on March 10, 2022) 4.2 Form of Note (Incorporated by reference to Exhibit A to Exhibit 4.1 to the Company’s Second Form 8-K filedon March 10, 2022) 4.3 Description of Company’s Registered Securities †10.1 Amended BellRing Brands, Inc. 2019 Long-Term Incentive Plan (Incorporated by referenced to Exhibit 10.1 tothe Company’s Form 10-Q filed on February 7, 2023) †10.2 Form of Omnibus Amendment to Restricted Stock Unit Agreement (Incorporated by referenced to Exhibit 10.2to the Company’s Form 10-Q filed on May 6, 2022) †10.3 Form of Omnibus Amendment to Performance Restricted Stock Unit Agreement (Incorporated by referenced toExhibit 10.3 to the Company’s Form 10-Q filed on May 6, 2022) †10.4 Form of Omnibus Amendment to Non-Qualified Stock Option Agreement (Incorporated by referenced toExhibit 10.4 to the Company’s Form 10-Q filed on May 6, 2022) †10.5 Amended and Restated Lock-Up Agreement, dated as of May 5, 2022, by and between BellRing Brands, Inc.and Robert V. Vitale (Incorporated by referenced to Exhibit 10.7 to the Company’s Form 10-Q filed on May 6,2022) †10.6 Amended BellRing Brands, Inc. Deferred Compensation Plan For Directors (Incorporated by referenced toExhibit 10.8 to the Company’s Form 10-Q filed on May 6, 2022) †10.7 Form of Severance and Change in Control Agreement (Incorporated by referenced to Exhibit 10.9 to theCompany’s Form 10-Q filed on May 6, 2022) †10.8 Form of Indemnification Agreement (Incorporated by reference to Exhibit 10.10 to the Company’s Form 10-Kfiled on November 19, 2024) †10.9 BellRing Brands, Inc. Senior Management Bonus Program (Incorporated by reference to Exhibit 10.1 to theCompany’s Form 8-K filed on November 22, 2019) †10.10 Form of Non-Qualified Stock Option Agreement (Incorporated by reference to Exhibit 10.3 to the Company’sForm 8-K filed on November 22, 2019) †10.11 Form of Director Restricted Stock Unit Agreement (Incorporated by reference to Exhibit 10.4 to the Company’sForm 8-K filed on November 22, 2019) †10.12 Form of Transaction Bonus Agreement (Incorporated by reference to Exhibit 10.14 to the Company’s Form 10-K filed on November 19, 2024) †10.13 Form of Gross Up Agreement (Incorporated by reference to Exhibit 10.15 to the Company’s Form 10-K filed onNovember 19, 2024) *10.14 Amended and Restated Master Services Agreement, dated March 10, 2022, by and among Post Holdings, Inc.,BellRing Intermediate Holdings, Inc., BellRing Brands, Inc. and BellRing Brands, LLC (Incorporated byreference to Exhibit 10.1 to the Company’s Second Form 8-K filed on March 10, 2022) *10.15 Amendment to Amended and Restated Master Services Agreement, dated August 4, 2023, by and among PostHoldings, Inc., BellRing Intermediate Holdings, Inc., BellRing Brands, Inc. and BellRing Brands, LLC(Incorporated by reference to Exhibit 10.23 to the Company’s Form 10-Q filed on August 8, 2023) 69
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Table of Contents Exhibit No Description 10.16 Registration Rights Agreement, dated March 10, 2022, by and among BellRing Brands, Inc. (formerly known asBellRing Distribution, LLC), Post Holdings, Inc. and the other stockholders party thereto from time to time(Incorporated by reference to Exhibit 10.2 to the Company’s Second Form 8-K filed on March 10, 2022) *10.17 Amended and Restated Employee Matters Agreement, dated March 10, 2022, by and among Post Holdings,Inc., BellRing Intermediate Holdings, Inc. (formerly known as BellRing Brands, Inc.), BellRing Brands, LLCand BellRing Brands, Inc. (formerly known as BellRing Distribution, LLC) (Incorporated by reference toExhibit 10.3 to the Company’s Second Form 8-K filed on March 10, 2022) *10.18 Tax Matters Agreement, dated March 10, 2022, by and among BellRing Brands, Inc., Post Holdings, Inc. andBellRing Intermediate Holdings, Inc. (Incorporated by reference to Exhibit 10.4 to the Company’s Second Form8-K filed on March 10, 2022) 10.19 Tax Receivable Agreement, dated October 21, 2019, by and among BellRing Brands, Inc., BellRing Brands,LLC and Post Holdings, Inc. (Incorporated by reference to Exhibit 10.5 to the Company’s Form 8-K filed onOctober 21, 2019) *10.20 Credit Agreement, dated March 10, 2022, by and among BellRing Brands, Inc., JPMorgan Chase Bank, N.A., asadministrative agent and collateral agent, and each lender from time to time party thereto (Incorporated byreference to Exhibit 10.5 to the Company’s Second Form 8-K filed on March 10, 2022) *10.21 First Amendment to Credit Agreement, dated August 22, 2025, by and among BellRing Brands, Inc., JPMorganChase Bank, N.A., as administrative agent, and each lender from time to time party thereto ‡10.22 Amended and Restated Master Supply Agreement, dated as of July 1, 2023, by and between Premier NutritionCompany, LLC and Fonterra (USA) Inc. (Incorporated by reference to Exhibit 10.24 to the Company’s Form10-Q filed on August 8, 2023) ‡10.23 MPC Purchase Commitment, dated as of July 1, 2023 by and between Premier Nutrition Company, LLC andFonterra (USA) Inc. (Incorporated by reference to Exhibit 10.25 to the Company’s Form 10-Q filed on August8, 2023) ‡10.24 Stremick Heritage Foods, LLC, Jasper Products, LLC and Premier Nutrition Company ManufacturingAgreement, dated as of December 14, 2022 (Incorporated by reference to Exhibit 10.22 to the Company’s Form10-Q filed on February 7, 2023) 19.1 BellRing Brands, Inc. Insider Trading Policy (Incorporated by reference to Exhibit 19.1 to the Company’s Form10-K filed on November 19, 2024) 21.1 Subsidiaries of BellRing Brands, Inc. 23.1 Consent of PricewaterhouseCoopers LLP 24.1 Power of Attorney (Included under Signatures) 31.1 Certification of Darcy H. Davenport pursuant to Rule 13a-14(a), as adopted pursuant to Section 302 of theSarbanes-Oxley Act of 2002, dated November 18, 2025 31.2 Certification of Paul A. Rode pursuant to Rule 13a-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, dated November 18, 2025 32.1 Certification of Darcy H. Davenport and Paul A. Rode, pursuant to 18 U.S.C. Section 1350 as adopted pursuantto Section 906 of the Sarbanes-Oxley Act of 2002, dated November 18, 2025 101 Interactive Data File (Form 10-K for the year ended September 30, 2025 filed in iXBRL (Inline eXtensibleBusiness Reporting Language)). The financial information contained in the iXBRL-related documents is“unaudited” and “unreviewed.” 104 The cover page from the Company’s Form 10-K for the year ended September 30, 2025, formatted in iXBRL(Inline eXtensible Business Reporting Language) and contained in Exhibit 101 * Exhibits and schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to furnishsupplementally to the Securities and Exchange Commission (the “SEC”) a copy of any omitted exhibit or schedule upon request bythe SEC. † These exhibits constitute management contracts, compensatory plans and arrangements. ‡ Certain portions of this document that constitute confidential information have been redacted in accordance with Regulation S-K,Item 601(b)(10). 70
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Table of Contents ITEM 16. FORM 10-K SUMMARY None. 71
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Table of Contents SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, BellRing Brands, Inc. has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. BELLRING BRANDS, INC. Date: November 18, 2025 By: /s/ Darcy H. Davenport Darcy H. Davenport President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Paul A. Rode and Craig L. Rosenthal, and each of them, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to sign any and all amendments to this report, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or their substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated. Signature Title Date /s/ Darcy H. Davenport President and Chief Executive Officer and Director(Principal Executive Officer) November 18, 2025 Darcy H. Davenport /s/ Paul A. Rode Chief Financial Officer and Treasurer(Principal Financial and Accounting Officer) November 18, 2025 Paul A. Rode /s/ Robert V. Vitale Chairman of the Board of Directors November 18, 2025 Robert V. Vitale /s/ Shawn W. Conway Director November 18, 2025 Shawn W. Conway /s/ Thomas P. Erickson Director November 18, 2025 Thomas P. Erickson /s/ Jennifer Kuperman Johnson Director November 18, 2025 Jennifer Kuperman Johnson /s/ Chonda J. Nwamu Director November 18, 2025 Chonda J. Nwamu /s/ Elliot H. Stein, Jr. Director November 18, 2025 Elliot H. Stein, Jr. 72
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Exhibit 4.3 DESCRIPTION OF BELLRING BRANDS, INC.’S SECURITIES REGISTERED PURSUANT TO SECTION 12 OF THE SECURITIES EXCHANGE ACT OF 1934 The following is a brief description of the registered securities of BellRing Brands, Inc. (the “Company,” “BellRing,” “we,” “us” or “our”). This description is not complete and is qualified in its entirety by reference to the full text of our certificate of incorporation (the “certificate of incorporation”) filed as Exhibit 3.1 to our Form 8-K12B filed on March 10, 2022 and incorporated herein by reference, and to the full text of our bylaws (the “bylaws”) filed as Exhibit 3.2 to our Form 8-K12B filed on March 10, 2022 and incorporated herein by reference. DESCRIPTION OF CAPITAL STOCK General Under our certificate of incorporation, we may issue up to 500,000,000 shares of common stock, par value $0.01 per share, and up to 50,000,000 shares of preferred stock, par value $0.01 per share. Our common stock is listed on the NYSE under the ticker symbol “BRBR”. Common Stock Voting Rights. The holders of our common stock are entitled to one vote for each share held by such holder on the applicable record date on all matters on which stockholders are generally entitled to vote. Dividends. The holders of our common stock are entitled to receive dividends when, as and if declared by our board of directors out of legally available funds. Liquidation or Dissolution. Upon our liquidation or dissolution, the holders of our common stock will be entitled to share ratably in those of our assets that are legally available for distribution to stockholders after payment of liabilities and subject to the special rights and preferences, if any, of any holders of our preferred stock then outstanding. Other Rights. There are no preemptive rights, redemption or sinking fund provisions applicable to our common stock, and the outstanding shares of our common stock are fully paid and non-assessable. Limitations of Rights of Holders of Common Stock - Preferred Stock The rights of holders of our common stock may be materially limited or qualified by the rights, powers and preferences of any preferred stock that we may issue in the future. Our board of directors is authorized, subject to limitations prescribed by Delaware law and our certificate of incorporation, to determine the terms and conditions of the preferred stock, including whether the shares of preferred stock will be issued in one or more series, the number of shares to be included in each series and the powers (including voting powers), designations, preferences and rights of the shares. Our board of directors also is authorized to designate any qualifications, limitations or restrictions on the shares without any further vote or action by our stockholders, subject to applicable rules of the NYSE and Delaware law. Authorizing our board of directors to establish preferred stock eliminates delays associated with seeking stockholder approval of the creation of a particular class or series of preferred stock. The rights of the holders of our common stock are subject to the rights of the holders of any shares of our preferred stock issued at any time,
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including in the future. The issuance of preferred stock, while providing desirable flexibility in connection with possible acquisitions and other corporate purposes, may have the effect of delaying, deferring or preventing a change in control and may adversely affect the voting and other rights of the holders of our common stock, which could have an adverse impact on the market price of our common stock. These provisions also could make it more difficult for our stockholders to effect certain corporate actions, including the election of directors. Corporate Opportunities The General Corporation Law of the State of Delaware (the “DGCL”) permits the adoption of a provision in a corporation’s certificate of incorporation renouncing any interests or expectancy of a corporation in, or in being offered an opportunity to participate in, specified business opportunities or specified classes or categories of business opportunities that are presented to the corporation or to one or more of its directors, officers or stockholders. Our certificate of incorporation includes certain provisions regulating and defining the conduct of our affairs to the extent that they may involve Post Holdings, Inc. (“Post”) and its directors, officers, employees, agents and affiliates (except that we and our subsidiaries are not deemed affiliates of Post or its affiliates for purposes of these provisions) and our rights, powers, duties and liabilities and those of our directors, officers, managers, employees and agents in connection with our relationship with Post. In general, and except as may be set forth in any agreement between us and Post, these provisions provide that Post and its affiliates may carry on and conduct any business of any kind, nature or description, whether or not such business is competitive with or in the same or similar lines of business as us; Post and its affiliates may do business with any of our customers, vendors and lessors; and Post and its affiliates may make investments in any kind of property in which we may make investments. In addition, these provisions provide that we renounce any interest or expectancy to participate in any business of Post or its affiliates. Moreover, our certificate of incorporation provides that we renounce any interests or expectancy in corporate opportunities which become known to (i) any of our directors, officers, managers, employees or agents who also are directors, officers, employees, agents or affiliates of Post or its affiliates (except that we and our subsidiaries are not deemed affiliates of Post or its affiliates for the purposes of the provision) or (ii) Post or its affiliates. The provision generally provides that neither Post nor our directors, officers, managers, employees or agents who also are directors, officers, employees, agents or affiliates of Post or its affiliates will be liable to us or our stockholders for breach of any fiduciary duty solely by reason of the fact that any such person pursues or acquires any corporate opportunity for the account of Post or its affiliates, directs, recommends or transfers such corporate opportunity to Post or its affiliates or does not offer or communicate information regarding such corporate opportunity to us or any person controlled by us because such person has directed or intends to direct such opportunity to Post or one of its affiliates. This renunciation does not extend to corporate opportunities expressly offered to one of our directors, officers, managers, employees or agents, solely in his or her capacity as our director, officer, manager, employee or agent. These provisions in our certificate of incorporation cease to apply at such time as none of the directors, officers, employees, agents or affiliates of Post serve as our directors, officers, managers, employees or agents. Anti-Takeover Effects of Our Certificate of Incorporation and Bylaws Our certificate of incorporation and bylaws contain certain provisions that are intended to enhance the likelihood of continuity and stability in the composition of our board of directors and which may have the effect of delaying, deferring or preventing a future takeover or change in control unless such takeover or change in control is approved by our board of directors. These provisions include: No Special Meetings Called by Stockholders. Our certificate of incorporation and bylaws provide that stockholder action can be taken only at an annual or special meeting of stockholders and cannot be taken by any
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consent in lieu of a meeting. Our bylaws also provide that, except as otherwise required by law, special meetings of the stockholders can only be called by the affirmative vote of a majority of our entire board of directors, the chairperson of the board of directors or our president. Except as described above, stockholders are not permitted to call a special meeting or to require the board of directors to call a special meeting. Advance Notice Procedures. Our bylaws contain provisions requiring that advance notice be delivered to us of any business to be brought by a stockholder before an annual meeting and providing for procedures to be followed by stockholders in nominating persons for election to our board of directors. Ordinarily, the stockholder must give notice in writing to our Secretary not less than 90 days nor more than 120 days prior to the date of the first anniversary of the prior year’s annual meeting except that, in the event that the date of the meeting is more than 30 days before or more than 60 days after such anniversary date, notice by the stockholder must be received not earlier than the 120th day prior to the date of such annual meeting and not later than the close of business on the later of the 90th day prior to the date of such annual meeting or the 10th day following the day on which public announcement of the date of the annual meeting is first made. For stockholder proposals, the notice must include a description of the proposal, the reasons for the proposal and other specified matters. Our board of directors may reject any proposals or nominations that have not followed these procedures or that are not a proper subject for stockholder action in accordance with the provisions of applicable law. Although our bylaws do not otherwise give the board of directors the power to approve or disapprove stockholder nominations of candidates or proposals regarding other business to be conducted at a special or annual meeting, our bylaws may have the effect of precluding the conduct of certain business or the nomination of certain individuals at a meeting if the proper procedures are not followed or may discourage or deter a potential acquirer from conducting a solicitation of proxies to elect its own slate of directors or otherwise attempting to obtain control of us. Directors, and Not Stockholders, Fix the Size of Our Board of Directors. Our certificate of incorporation and bylaws provide that the number of directors will be fixed from time to time exclusively pursuant to a resolution adopted by our board of directors, but in no event will it consist of less than five nor more than twelve directors. Vacancies and Newly-Created Directorships on Our Board of Directors. Subject to the special rights of holders of any outstanding series of our preferred stock, any vacancy on our board of directors occurring for any reason, and any newly created directorships which occur by reason of an increase in the number of directors, will be filled only by the majority of the remaining directors, even if less than a quorum or by a sole remaining director. These provisions could make it more difficult for our stockholders to affect the composition of the board of directors. Classified Board of Directors; Removal of Directors. Our certificate of incorporation and bylaws provide that our board of directors is divided into three classes of directors serving staggered three-year terms. In January 2025, we amended our certificate of incorporation and bylaws to declassify our board of directors over a three-year period ending at our 2027 annual meeting of stockholders, with directors in any class up for election at each of the 2025, 2026 and 2027 annual meetings of stockholders and all directors up for election at every annual meeting thereafter being elected for only one year terms. The number of directors assigned to each class is as equal as reasonably possible. Until our board of directors is fully declassified at the 2027 annual meeting of stockholders, only a portion of our board of directors up for election each year, and the existence of a classified board of directors could render more difficult or discourage an attempt to obtain control of us because it would take more than one annual meeting to do so. In addition, for as long as our board of directors remains classified, our certificate of incorporation provides that our directors may only be removed for cause, which could also make it more difficult to change the composition of our board of directors. Effective at our 2027 annual meeting of stockholders, our board of directors will be fully declassified, and thereafter directors may be removed with or without cause. Authorized but Unissued Shares. Our authorized but unissued shares of common stock and preferred stock are available for future issuance without stockholder approval, subject to applicable rules of the NYSE and Delaware law. These additional shares may be utilized for a variety of corporate purposes, including future public offerings or private offerings to raise additional capital, corporate acquisitions and employee benefit plans and equity grants. The existence of authorized but unissued shares of common stock and preferred stock could render
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more difficult or discourage an attempt to obtain control of a majority of our common stock by means of a proxy contest, tender offer, merger or otherwise. We do not intend to solicit approval of stockholders for issuance of authorized but unissued shares of our common stock and preferred stock, unless our board of directors believes that approval is advisable or is required by applicable rules of the NYSE or Delaware law. Amendments to Certificate of Incorporation and Bylaws The DGCL generally provides that a corporation may amend its certificate of incorporation upon a resolution of its board of directors proposing the amendment and its submission to the stockholders for their approval upon the affirmative vote of holders of a majority of the voting power entitled to vote thereon. Our certificate of incorporation provides that it may be amended in accordance with and upon the vote prescribed by Delaware law, except that the indemnification provisions of the certificate of incorporation may be amended (or a provision inconsistent with the indemnification provisions adopted) only upon the affirmative vote of not less than 85% of all of the voting power of all of the outstanding shares of our common stock then entitled to vote in the election of directors, voting together as a single class. The DGCL provides that the power to adopt, amend or repeal the bylaws of a corporation is held by the stockholders of the corporation, except that a corporation may, in its certificate of incorporation, confer the power to adopt, amend or repeal its bylaws upon the board of directors of the corporation, but the fact that such power has been so conferred upon the board of directors will not divest the stockholders of such power or limit their power to adopt, amend or repeal the bylaws. Our certificate of incorporation and bylaws provide that our board of directors may amend, alter, change or repeal any provision of the bylaws. Our certificate of incorporation and bylaws also provide that stockholders may amend, alter, change or repeal any provision of the bylaws upon the affirmative vote of a majority of all of the voting power entitled to vote thereon. Directors’ Liability; Indemnification of Directors and Officers The DGCL permits a corporation, in its certificate of incorporation, to limit or eliminate, subject to certain statutory limitations, the liability of directors to the corporation or its stockholders for monetary damages for breaches of fiduciary duty, except for liability: • for any breach of the director’s duty of loyalty to the corporation or its stockholders; • for acts or omissions not in good faith or that involve intentional misconduct or knowing violation of law; • in respect of certain unlawful dividend payments or stock redemptions or repurchases; and • for any transaction from which a director derives an improper personal benefit. The DGCL permits a corporation, under specified circumstances, to indemnify its directors, officers, employees and agents against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by them in connection with any action, suit or proceeding by reason of the fact that they were or are directors, officers, employees or agents of the corporation, if such directors, officers, employees or agents acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reason to believe their conduct was unlawful. In a derivative action or suit (i.e., one by or in the right of the corporation), indemnification may be made only for expenses actually and reasonably incurred by directors, officers, employees and agents in connection with the defense or settlement of an action or suit, and only with respect to a matter as to which they have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification will be made if such person has been adjudged liable to the corporation, unless and only to the extent that the court in which the action or suit was brought determines upon application that the defendant directors, officers, employees or agents are fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability.
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The DGCL also permits corporations to advance expenses incurred by an officer or director of the corporation in defending any civil, criminal, administrative or investigative action, suit or proceeding in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation. Our certificate of incorporation limits the liability of directors to the fullest extent permitted by the DGCL and provides that we will provide our directors and officers with customary indemnification and advancement. We have entered into customary indemnification agreements with each of our directors and certain of our executive officers that provide them, in general, with customary indemnification and advancement in connection with their service to us or on our behalf. Exclusive Forum The DGCL permits a corporation to require, and not prohibit, in its certificate of incorporation or bylaws, internal corporate claims to be brought (only) in Delaware. Under Section 115 of the DGCL, “internal corporate claims” means claims, including claims in the right of the corporation, (i) that are based upon a violation of a duty by a current or former director or officer or stockholder in such capacity or (ii) as to which the DGCL confers jurisdiction upon the Court of Chancery. Section 12 of our certificate of incorporation provides that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery (or, if the Court of Chancery does not have subject matter jurisdiction, the federal district court for the State of Delaware) is the exclusive forum for the following types of actions or proceedings under Delaware statutory or common law: • any derivative action or proceeding brought on our behalf; • any action asserting a breach of fiduciary duty; • any action asserting a claim against us arising pursuant to the DGCL; and • any action asserting a claim against us that is governed by the internal affairs doctrine. Section 12 does not apply to suits brought to enforce a duty or liability created by the Exchange Act, for which the U.S. federal courts have exclusive jurisdiction. Our certificate of incorporation also provides that U.S. federal courts will, to the fullest extent permitted by law, be the sole and exclusive forum for the resolution of any complaint asserting a cause of action or proceeding arising under the Securities Act of 1933, as amended (the “Securities Act”). Further, to the fullest extent permitted by law, any person or entity purchasing or otherwise acquiring or holding any interest in our common stock will be deemed to have notice of Section 12 of our certificate of incorporation. Although our certificate of incorporation contains the exclusive forum provision described above, it is possible that a court could find that such a provision is inapplicable for a particular claim or action or that such provision is unenforceable. The exclusive forum provision does not relieve us of our duties to comply with the federal securities laws and the rules and regulations thereunder, and our stockholders will not be deemed to have waived our compliance with these laws, rules and regulations.
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Exhibit 10.21 FIRST AMENDMENT TO CREDIT AGREEMENT This FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is dated as of August 22, 2025 and is entered into by and among BELLRING BRANDS, INC., a Delaware corporation (formerly known as BellRing Distribution, LLC, a Delaware limited liability company) (the “Borrower”), the Guarantors party hereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”), each Lender party hereto that is providing 2025 Revolving Credit Commitments (as defined herein) (collectively, the “2025 Revolving Credit Lenders”), and each L/C Issuer. RECITALS WHEREAS, the Borrower, the Lenders party thereto, each L/C Issuer and the Administrative Agent have entered into that certain Credit Agreement, dated as of March 10, 2022 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”, and the Existing Credit Agreement, as amended pursuant to this Amendment, the “Credit Agreement”); WHEREAS, the Borrower has notified the Administrative Agent that it is requesting: (i) pursuant to Section 2.17 of the Existing Credit Agreement, Credit Agreement Refinancing Indebtedness (as defined in the Existing Credit Agreement) in the form of Other Revolving Commitments (as defined in the Existing Credit Agreement) in the aggregate amount of $200,000,000 (such commitments, the “2025 Refinancing Revolving Credit Commitments”), which 2025 Refinancing Revolving Credit Commitments will replace in full on the First Amendment Effective Date (as defined below) all existing Revolving Credit Commitments under the Existing Credit Agreement immediately prior to giving effect to this Amendment (such existing Revolving Credit Commitments, the “Existing Revolving Credit Commitments”); (ii) pursuant to Section 2.14 of the Existing Credit Agreement, an increase to the aggregate principal amount of 2025 Refinancing Revolving Credit Commitments in an amount equal to $300,000,000 (such increased commitments, the “2025 Incremental Revolving Credit Commitments” and collectively with the 2025 Refinancing Revolving Credit Commitments, the “2025 Revolving Credit Commitments”), to be effective on the First Amendment Effective Date; WHEREAS, pursuant to Section 2.17 of the Existing Credit Agreement, the Borrower may obtain Other Revolving Commitments (as defined in the Existing Credit Agreement) by, among other things, entering into one or more Refinancing Amendments in accordance with the terms and conditions of the Existing Credit Agreement; WHEREAS, pursuant to Section 2.14 of the Existing Credit Agreement, the Borrower may obtain Incremental Facilities (as defined in the Existing Credit Agreement) by, among other ii
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things, entering into one or more Joinder Agreements in accordance with the terms and conditions of the Existing Credit Agreement; WHEREAS, the Borrower has requested, and each of the 2025 Revolving Credit Lenders party hereto has agreed, subject to the terms and conditions hereof, to extend 2025 Refinancing Revolving Credit Commitments and 2025 Incremental Revolving Credit Commitments to the Borrower on the First Amendment Effective Date in the amounts set forth next to such 2025 Revolving Credit Lender’s name on Annex I hereto; WHEREAS, the Revolving Credit Loans made by the 2025 Revolving Credit Lenders to the Borrower under the 2025 Revolving Credit Commitments are referred to herein as the “2025 Revolving Credit Loans” and the Facility in respect of the 2025 Revolving Credit Commitments and the 2025 Revolving Credit Loans is referred to herein as the “2025 Revolving Credit Facility”; WHEREAS, (x) the proceeds of the 2025 Revolving Credit Facility will be used (a) to repay in full the outstanding Original Revolving Credit Loans on the First Amendment Effective Date, (b) to pay fees and expenses in connection with the foregoing and (c) for working capital, acquisitions, investments, and for other general corporate purposes (including, for the avoidance of doubt, repurchases of shares and repurchases and redemptions of debt), and (y) the Original Revolving Credit Commitments shall be terminated on the First Amendment Effective Date; and WHEREAS, in connection with the foregoing, the Administrative Agent, the Borrower, the other Guarantors and the 2025 Revolving Credit Lenders desire to memorialize the terms of this Amendment by amending the Existing Credit Agreement in accordance with Section 10.01 thereof, such amendments to become effective on the First Amendment Effective Date. NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth herein, the parties hereto hereby agree as follows: SECTION I. SECTION I. DEFINED TERMS. Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Credit Agreement. SECTION II. SECTION II. 2025 REVOLVING CREDIT FACILITY. A. Subject to the terms and conditions set forth herein, the 2025 Revolving Credit Lenders agree, on aseveral and not joint basis, to make their respective 2025 Refinancing Revolving Credit Commitments (as specifiedon Annex I) available to the Borrower on the First Amendment Effective Date. The 2025 Refinancing RevolvingCredit Commitments shall replace the Existing Revolving Credit Commitments in full. B. Subject to the terms and conditions set forth herein, the 2025 Revolving Credit Lenders agree, on aseveral and not joint basis, to make their respective 2025 Incremental Revolving Credit Commitments (as specifiedon Annex I) available to the Borrower on the First Amendment Effective Date. iii
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C. The aggregate amount of the 2025 Revolving Credit Commitments on the First Amendment EffectiveDate (after giving effect to this Amendment) is $500,000,000. D. This Amendment constitutes a “Refinancing Amendment” with respect to the establishment of the2025 Refinancing Revolving Credit Commitments as “Other Revolving Commitments”. The 2025 RefinancingRevolving Credit Commitments have been established in accordance with Section 2.17 of the Credit Agreement. E. This Amendment constitutes a “Joinder Agreement” with respect to the establishment of the 2025Incremental Revolving Credit Commitments as an “Incremental Facility”. The 2025 Incremental Revolving CreditCommitments have been established in accordance with Section 2.14 of the Credit Agreement, have been incurredpursuant to clause (c) of the definition of “Incremental Available Amount” and shall constitute an addition to, andpart of the same Class as, the 2025 Refinancing Revolving Credit Commitments. F. Any revolving credit loans made pursuant to the 2025 Revolving Credit Commitments shall be“Revolving Credit Loans” for all purposes under the Credit Agreement and each other Loan Document and, exceptas expressly set forth in this Amendment (including in the Credit Agreement), shall have terms and conditionsidentical to the Existing Revolving Credit Commitments. G. After giving effect to this Amendment on the First Amendment Effective Date, the Revolving CreditCommitments of each 2025 Revolving Credit Lender shall be as set forth on Annex I hereto. H. On the First Amendment Effective Date, the Borrower shall (i) prepay in full the Original RevolvingCredit Loans then outstanding, together with all accrued and unpaid interest thereon and fees (including, withoutlimitation, Letter of Credit Fees and commitment fees, in accordance with the Existing Credit Agreement) orpremiums, if any, with respect to the Original Revolving Credit Facility to the First Amendment Effective Date, andthe Original Revolving Credit Commitments will automatically terminate, and (ii) pay the Administrative Agent allfees due and payable to it under the Fee Letter. I. Each of the 2025 Revolving Credit Lenders party hereto agrees to waive any breakage costs that mayarise in accordance with Section 3.05 of the Credit Agreement due to the prepayment of the Original RevolvingCredit Loans on a day other than the last day of the Interest Period for such Loans. J. For the avoidance of doubt, any Letter of Credit that was issued and is still outstanding immediatelyprior to the First Amendment Effective Date under the Existing Credit Agreement shall be deemed issued andoutstanding under the Credit Agreement, as of the First Amendment Effective Date. SECTION III. SECTION III. AMENDMENTS TO EXISTING CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS. A. Effective as of the First Amendment Effective Date, the parties hereto agree that the Existing CreditAgreement is hereby amended to delete the stricken text (indicated textually in the same manner as the followingexample: stricken text) and to add the double-underlined text (indicated textually in the same manner as thefollowing example: double-underlined text) as set forth in the Credit Agreement attached as Exhibit A hereto. iv
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B. Effective as of the First Amendment Effective Date, the parties hereto agree that Schedule 2.01 of theCredit Agreement shall be deleted in its entirety and replaced with Schedule 2.01 as set forth in Annex I hereto. SECTION IV. CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective as of the date hereof only upon the satisfaction of all of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as the “First Amendment Effective Date”): A. Execution. The Administrative Agent shall have received a counterpart signature page of thisAmendment, duly executed and delivered by the Administrative Agent, the Borrower, the Guarantors and the 2025Revolving Credit Lenders. B. Notices. The Administrative Agent shall have received a conditional notice of prepayment withrespect to the prepayment in full of the Original Revolving Credit Loans, in accordance with Section 2.05(a) of theCredit Agreement (except that, notwithstanding anything to the contrary in the Existing Credit Agreement, theparties hereto agree that such notice may be delivered no later than three (3) Business Days prior to the FirstAmendment Effective Date). C. Representations and Warranties. The representations and warranties set forth in Section V of thisAmendment shall be true and correct in all material respects on and as of the First Amendment Effective Date,except to the extent that such representations and warranties relate to an earlier date, in which case suchrepresentations and warranties shall be true and correct in all material respects as of such earlier date, in each caseafter giving effect to this Amendment (and except that the representations and warranties contained in clauses (a)and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnishedpursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement); provided that anyrepresentation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shallbe true and correct (after giving effect to any qualification therein) in all respects. D. No Default. No Default or Event of Default shall exist immediately before or immediately aftergiving effect to this Amendment and the transactions contemplated hereby. E. Officer Certificate. The Administrative Agent (or its counsel) shall have received (i) a certificate of(or on behalf of) each Loan Party, dated the First Amendment Effective Date and executed by a secretary, assistantsecretary or other senior officer (as the case may be) thereof, which shall (A) certify that attached thereto is a trueand complete copy of the resolutions or written consents of the governing body of such Loan Party authorizing theexecution, delivery and performance of this Amendment, and that such resolutions or written consents have notbeen modified, rescinded or amended (other than as attached thereto) and are in full force and effect, (B) identifyby name and title and bear the signatures of the officers or authorized signatories of such Loan Party authorized tosign this Amendment on the First Amendment Effective Date and (C) certify (x) that attached thereto is a true andcomplete copy of the certificate or articles of incorporation or formation of such Loan Party, certified by therelevant authority of the jurisdiction of organization of such Loan Party, and a true and correct copy of its bylaws oroperating agreement and (y) that such documents or agreements have not been amended (except as otherwiseattached to such certificate and certified therein as being the only amendments thereto as of such date) and (ii) agood standing (or equivalent) certificate as of a recent date for each Loan Party, from the relevant authority of itsjurisdiction of organization. v
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F. Legal Opinions. The Administrative Agent (or its counsel) shall have received, on behalf of itself andthe 2025 Revolving Credit Lenders on the First Amendment Effective Date, a customary written opinion fromLewis Rice LLC, counsel to the Loan Parties in form and substance reasonably satisfactory to the AdministrativeAgent. G. Fees and Expenses. All costs, fees and expenses (including, without limitation, reasonable andinvoiced out-of-pocket expenses) to the extent invoiced no less than two (2) Business Days prior to the FirstAmendment Effective Date owing by the Borrower to the Administrative Agent and/or the Lenders under the LoanDocuments or as a result of the consummation of the transactions contemplated by this Amendment shall have beenpaid in full. The Administrative Agent shall have received all fees due and payable to it under the Fee Letter. H. PATRIOT Act, etc. The Administrative Agent shall have received, at least three (3) Business Daysprior to the First Amendment Effective Date, to the extent requested at least seven (7) Business Days prior to theFirst Amendment Effective Date, all other documentation and other information that the Administrative Agent orany 2025 Revolving Credit Lender reasonably determines is required by regulatory authorities under applicable“know your customer” and anti-money laundering rules and regulations, including without limitation the Act andthe Beneficial Ownership Regulation. I. Repayment of the outstanding Original Revolving Credit Loans. Either (i) the AdministrativeAgent shall have received evidence of the payment in full of any Original Revolving Credit Loan, together withany accrued but unpaid interest thereon and all fees or premiums, if any, with respect to the Original RevolvingCredit Facility or (ii) such payment will be made on the First Amendment Effective Date. J. Solvency Certificate. The Administrative Agent shall have received a certificate executed by theChief Financial Officer of the Borrower as to the solvency of the Borrower and its Subsidiaries (taken as a whole)on the First Amendment Effective Date after giving effect to the transactions contemplated hereby. K. Closing Certificate. The Administrative Agent shall have received a certificate attesting to thecompliance with clauses (C), (D) and (M) of this Section IV on the First Amendment Effective Date from aResponsible Officer of the Borrower. L. Promissory Notes. The Administrative Agent shall have received a Note executed by the Borrower infavor of each Lender that has requested a Note at least two (2) Business Days prior to the First AmendmentEffective Date. M. No Material Adverse Effect. No Material Adverse Effect has occurred and is continuing since thedate of delivery of the most recently delivered audited financial statements required to be delivered pursuant toSection 6.01(a) of the Existing Credit Agreement. N. For purposes of determining whether the conditions specified in this Section IV have been satisfied on the date hereof, each 2025 Revolving Credit Lender that has executed and delivered this Amendment shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to such 2025 Revolving Credit Lender. vi
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SECTION V. REPRESENTATIONS AND WARRANTIES. In order to induce the Administrative Agent and the Lenders to enter into this Amendment and amend the Credit Agreement in the manner provided herein, each Loan Party which is a party hereto represents and warrants to the Administrative Agent and the Lenders that the following statements are true and correct in all material respects on and as of the First Amendment Effective Date, except to the extent that such representations and warranties relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, in each case after giving effect to this Amendment (and except that the representations and warranties contained in clauses (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement); provided that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects: A. Existence, Qualification and Power. Each Loan Party (a) is duly organized or formed, validlyexisting and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization;(b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents andapprovals to execute, deliver and perform its obligations under this Amendment and the other Loan Documents towhich it is a party; and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws ofeach jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires suchqualification or license; except in each case referred to in clause (c), to the extent that failure to do so could notreasonably be expected to have a Material Adverse Effect. B. Authorization; No Contravention. The execution, delivery and performance by each Loan Party ofthe terms of this Amendment and each Loan Document, to which it is a party have been duly authorized by allnecessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of suchPerson’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation ofany Lien under, or require any payment to be made under (i) any material contract to which such Person is a partyor affecting such Person or the properties of such Person or any of its Restricted Subsidiaries or (ii) any order,injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its propertyis subject; or (c) violate any Law. C. Governmental Authorization; Other Consents. No material approval, consent, exemption,authorization or other action by, or notice to, or filing with, any Governmental Authority or any other Person isnecessary or required in connection with the execution, delivery or performance by, or enforcement against, anyLoan Party of this Amendment and each Loan Document to which it is a party, except for the approvals, consents,exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made andare in full force and effect. D. Binding Effect. This Amendment has been duly executed and delivered by each Loan Party that is aparty hereto. Each of this Amendment and each Loan Document to which it is a party constitutes a legal, valid andbinding obligation of each Loan Party, enforceable against such Loan Party in accordance with its terms, except tothe extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization,moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless ofwhether enforcement is sought in equity or at law). vii
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E. Incorporation of Representations and Warranties from Credit Agreement. The representationsand warranties of the Borrower and each other Loan Party contained in Article 5 of the Credit Agreement or anyother Loan Document shall be true and correct in all material respects on and as of the First Amendment EffectiveDate, except to the extent such representations and warranties relate to an earlier date, in which case suchrepresentations and warranties shall be true and correct in all material respects as of such earlier date, in each caseafter giving effect to this Amendment (and except that the representations and warranties contained in clauses (a)and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnishedpursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement); provided that anyrepresentation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shallbe true and correct (after giving effect to any qualification therein) in all respects. F. Absence of Default. No Event of Default or Default exists, in each case after giving effect to thisAmendment and the transactions contemplated hereby. SECTION VI. MISCELLANEOUS. A. Reference to and Effect on the Credit Agreement and the Other Loan Documents. (i) On and after the First Amendment Effective Date, each reference in the Credit Agreement to“this Agreement,” “hereunder,” “hereof,” “herein” or words of like import referring to the CreditAgreement, and each reference in the other Loan Documents to the “Credit Agreement,” “thereunder,”“thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to theCredit Agreement. (ii) Except as specifically amended by this Amendment, the Credit Agreement and the other LoanDocuments shall remain in full force and effect and are hereby ratified and confirmed. B. Loan Document. This Amendment shall constitute a Loan Document under the terms of the CreditAgreement. C. No Novation. By its execution of this Amendment, each of the parties hereto acknowledges andagrees that the terms of this Amendment do not constitute a novation, but, rather, an amendment of the terms of apre-existing Indebtedness and related agreement, as evidenced by the Existing Credit Agreement. D. Headings. Section and subsection headings in this Amendment are included herein for convenience ofreference only and shall not constitute a part of this Amendment for any other purpose or be given any substantiveeffect. E. Applicable Law. THIS AMENDMENT AND ALL CLAIMS OR CAUSES OF ACTION(WHETHER IN CONTRACT, TORT OR OTHERWISE) THAT MAY BE BASED UPON, ARISE OUT OF ORRELATE IN ANY WAY HERETO OR THE NEGOTIATION, EXECUTION OR PERFORMANCE HEREOF,SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OFNEW YORK. The provisions of Sections 10.14(b), (c) and (d) and 10.15 of the Credit Agreement are incorporatedby reference herein and made a part hereof. F. Counterparts. This Amendment may be executed in counterparts (and by different parties hereto indifferent counterparts), each of which shall constitute an original, but all of which when taken together shallconstitute a single agreement. Delivery of an executed viii
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counterpart of a signature page of this Amendment by facsimile or other electronic imaging means (e.g., in “pdf” or“tif” format) shall be effective as delivery of a manually executed counterpart of this Amendment. The words“execution,” “signed,” “signature” and words of like import in this Amendment shall be deemed to includeelectronic signatures or electronic records, each of which shall be of the same legal effect, validity or enforceabilityas a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to theextent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and NationalCommerce Act, the New York State Electronic Signatures and Records Act or any other similar state laws based onthe Uniform Electronic Transactions Act. G. Severability. Any term or provision of this Amendment which is invalid or unenforceable in anyjurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability withoutrendering invalid or unenforceable the remaining terms and provisions of this Amendment or affecting the validityor enforceability of any of the terms or provisions of this Amendment in any other jurisdiction. If any provision ofthis Amendment is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as wouldbe enforceable. H. Reaffirmation. Each Loan Party party hereto hereby (i) acknowledges and agrees that all of itspledges, grants of security interests and Liens and other obligations under the Collateral Agreement and the otherLoan Documents to which it is a party are reaffirmed and remain in full force and effect on a continuous basis, (ii)reaffirms (x) each Lien granted by it to the Administrative Agent for the benefit of the Secured Parties and (y) theguaranties made by it pursuant to the Collateral Agreement and (iii) acknowledges and agrees that the grants ofsecurity interests and Liens by, and the guaranties of, the Guarantors contained in the Collateral Agreement and theother Loan Documents are, and shall remain, in full force and effect on and after the First Amendment EffectiveDate. I. No Waiver. The execution, delivery and effectiveness of this Amendment shall not, except asprovided herein, operate as a waiver of any right, power or remedy of any Lender, any L/C Issuer or theAdministrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of theLoan Documents. [Signature pages follow] ix
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above. Borrower: BELLRING BRANDS, INC. By: /s/ Paul A Rode Name: Paul A. Rode Title: Chief Financial Officer Guarantors: BELLRING INTERMEDIATE HOLDINGS, INC. By: /s/ Paul A Rode Name: Paul A. Rode Title: Chief Financial Officer BELLRING BRANDS, LLC By: /s/ Paul A Rode Name: Paul A. Rode Title: Chief Financial Officer TA/DEI-A ACQUISITION CORP. By: /s/ Paul A Rode Name: Paul A. Rode Title: Chief Financial Officer DYMATIZE ENTERPRISES, LLC By: /s/ Paul A Rode Name: Paul A. Rode Title: Chief Financial Officer
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SUPREME PROTEIN, LLC By: /s/ Paul A Rode Name: Paul A. Rode Title: Chief Financial Officer PREMIER NUTRITION COMPANY, LLC By: /s/ Paul A Rode Name: Paul A. Rode Title: Chief Financial Officer
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JPMORGAN CHASE BANK, N.A., as Administrative Agent, as a Lender and as an L/C Issuer By: /s/ Shivam Joshi Name: Shivam Joshi Title: Vice President
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Bank of America, N.A., as Lender By: /s/ J. Casey Cosgrove Name: J. Casey Cosgrove Title: Managing Director
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BARCLAYS BANK PLC, as Lender By: /s/ Ritam Bhalla Name: Ritam Bhalla Title: Director
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Citibank, N.A., as Lender By: /s/ Albert Sutton Name: Albert Sutton Title: Vice President
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COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, as Lender By: /s/ Michael Falter Name: Michael Falter Title: Managing Director
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Morgan Stanley Senior Funding, Inc., as Lender By: /s/ Michael King Name: Michael King Title: Vice President
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PNC Bank, National Association, as Lender By: /s/ Caleb Shapkoff Name: Caleb Shapkoff Title: Senior Vice President
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TRUIST BANK, as Lender By: /s/ J. Carols Navarrete Name: J. Carols Navarrete Title: Director
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UBS AG, STAMFORD BRANCH, as Lender By: /s/ Joselin Fernandes Name: Joselin Fernandes Title: Director By: /s/ Larcy Naval Name: Larcy Naval Title: Director
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Wells Fargo Bank, National Association., as Lender By: /s/ Michael Day Name: Michael Day Title: Vice President
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EXHIBIT A Credit Agreement [See attached]
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CREDIT AGREEMENT DATED AS OF MARCH 10, 2022 as amended by the First Amendment to Credit Agreement, dated as of August 22, 2025 AMONG BELLRING BRANDS, INC., AS BORROWER VARIOUS LENDERS, AND JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT _______________________________________________________ JPMORGAN CHASE BANK, N.A., BOFA SECURITIES, INC., BARCLAYS BANK PLC, CITIBANK, N.A., CREDIT SUISSE LOAN FUNDING LLC, GOLDMAN SACHS BANK USA, MORGAN STANLEY SENIOR FUNDING, INC. AND WELLS FARGO SECURITIES, LLC AS JOINT LEAD ARRANGERSAND JOINT BOOKRUNNERS AND BMO CAPITAL MARKETS CORP.,COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH,TRUIST SECURITIES INC. AND STIFEL BANK & TRUST AS CO-MANAGERS
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TABLE OF CONTENTS Page Article 1. Definitions and Accounting Terms 1 Section 1.01 Defined Terms 1 Section 1.02 Other Interpretive Provisions 6465 Section 1.03 Accounting Terms 6466 Section 1.04 Rounding 6567 Section 1.05 Times of Day 6567 Section 1.06 Letter of Credit Amounts 6567 Section 1.07 Currency Equivalents Generally; Change of Currency 6667 Section 1.08 Timing of Payment and Performance 6667 Section 1.09 Certain Calculations 6668 Section 1.10 Divisions 69Rates. 70 Section 1.11 Divisions 70 Section 1.12 Interest Rates; Benchmark Notification 6971 Section 1.121.13 The Transactions 7071 Article 2. The Commitments and Credit Extensions 7071 Section 2.01 The Revolving Credit Borrowings 7071 Section 2.02 Borrowings, Conversions and Continuations of Loans 7072 Section 2.03 Letters of Credit. 7274 Section 2.04 [Reserved] 8284 Section 2.05 Prepayments 8284 Section 2.06 Termination or Reduction of Commitments 8587 Section 2.07 Repayment of Loans 8587 Section 2.08 Interest 8688 Section 2.09 Fees 8688 Section 2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate 8789 Section 2.11 Evidence of Debt 8890 Section 2.12 Payments Generally; Administrative Agent’s Clawback 8890 Section 2.13 Sharing of Payments by Lenders 9092 Section 2.14 Incremental Facilities 9193 Section 2.15 Cash Collateral 9597 Section 2.16 Defaulting Lenders 9698 Section 2.17 Refinancing Facilities 98100 Article 3. Taxes, Yield Protection and Illegality 99101 Section 3.01 Taxes 99101 ii
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Section 3.02 Illegality 104106 Section 3.03 Inability to Determine Rates 105107 Section 3.04 Increased Costs; Reserves on Eurodollar Rate Loans, Term SOFR Loans and RFR Loans. 106108 Section 3.05 Compensation for Losses 108110 Section 3.06 Mitigation Obligations; Replacement of Lenders 109111 Section 3.07 Survival 109111 Section 3.08 Effect of Benchmark Transition Event 109111 Article 4. Conditions Precedent 110112 Section 4.01 Conditions Precedent to the Closing Date 110112 Section 4.02 Conditions to All Credit Extensions after the Closing Date 113115 Article 5. Representations and Warranties 114116 Section 5.01 Existence, Qualification and Power 114116 Section 5.02 Authorization; No Contravention 114116 Section 5.03 Governmental Authorization; Other Consents 114116 Section 5.04 Binding Effect 114116 Section 5.05 Financial Statements; No Material Adverse Effect 115117 Section 5.06 Litigation 115117 Section 5.07 Ownership of Property 115117 Section 5.08 Environmental 116118 Section 5.09 Insurance 117119 Section 5.10 Taxes 117119 Section 5.11 ERISA Compliance; Labor Matters 117119 Section 5.12 Subsidiaries; Equity Interests 118120 Section 5.13 Margin Regulations; Investment Company Act 118120 Section 5.14 Disclosure 119121 Section 5.15 Compliance with Laws 119121 Section 5.16 Intellectual Property; Licenses, Etc. 119121 Section 5.17 Solvency 119121 Section 5.18 Collateral Documents 119121 Section 5.19 Anti-Terrorism; Anti-Money Laundering; Etc. 120122 Section 5.20 Foreign Corrupt Practices Act. 120122 Section 5.21 Affected Financial Institution 120122 Article 6. Affirmative Covenants 120122 Section 6.01 Financial Statements 121123 Section 6.02 Certificates; Other Information 122124 Section 6.03 Notices 123125 Section 6.04 Preservation of Existence, Etc. 124126 Section 6.05 Maintenance of Properties 124126 Section 6.06 Maintenance of Insurance 124126 iii
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Section 6.07 Compliance with Laws 124126 Section 6.08 Books and Records 125127 Section 6.09 Inspection Rights 125127 Section 6.10 Use of Proceeds 125127 Section 6.11 Covenant to Guarantee Obligations and Give Security 125127 Section 6.12 Compliance with Environmental Laws 126129 Section 6.13 Environmental Disclosure 127129 Section 6.14 Lender Calls 128130 Section 6.15 Further Assurances 128130 Section 6.16 [Reserved] 128131 Section 6.17 Designation of Restricted and Unrestricted Subsidiaries. 128131 Article 7. Negative Covenants 130132 Section 7.01 Liens 130132 Section 7.02 Investments 134136 Section 7.03 Indebtedness 137139 Section 7.04 Fundamental Changes 143145 Section 7.05 Dispositions 144146 Section 7.06 Restricted Payments 147149 Section 7.07 Change in Nature of Business 150152 Section 7.08 Transactions with Affiliates 150152 Section 7.09 Restrictive Agreements 152154 Section 7.10 Use of Proceeds 153155 Section 7.11 Total Net Leverage Ratio 153155 Section 7.12 Amendments of Organization Documents 153155 Section 7.13 Fiscal Year 153156 Section 7.14 Prepayments of Indebtedness 154156 Section 7.15 Sale-Leaseback Transactions 154157 Section 7.16 Amendments of Indebtedness 155157 Article 8. Events of Default and Remedies 155157 Section 8.01 Events of Default 155157 Section 8.02 Remedies Upon Event of Default 157159 Section 8.03 Application of Funds 158160 Article 9. Agency 158160 Section 9.01 Appointment and Authority 158160 Section 9.02 Rights as a Lender 159161 Section 9.03 Exculpatory Provisions 159161 Section 9.04 Reliance 160162 Section 9.05 Delegation of Duties 160163 Section 9.06 Resignation of Administrative Agent 161163 Section 9.07 Non-Reliance on Administrative Agent and Other Lenders 162164 iv
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Section 9.08 No Other Duties, Etc. 162164 Section 9.09 Administrative Agent May File Proofs of Claim 162164 Section 9.10 Collateral and Guaranty Matters 163165 Section 9.11 Additional Secured Parties 165167 Section 9.12 Certain ERISA Matters 165167 Section 9.13 Acknowledgements of Lenders and L/C Issuers. 166168 Section 9.14 Borrower Communications. 170 Article 10. Miscellaneous 167171 Section 10.01 Amendments, Etc. 167171 Section 10.02 Notices; Effectiveness; Electronic Communication 170173 Section 10.03 No Waiver; Cumulative Remedies; Enforcement 172175 Section 10.04 Expenses; Indemnity; Damage Waiver 173176 Section 10.05 Payments Set Aside 175178 Section 10.06 Successors and Assigns 175178 Section 10.07 Treatment of Certain Information; Confidentiality 183187 Section 10.08 Right of Setoff 185188 Section 10.09 Interest Rate Limitation 185188 Section 10.10 Counterparts; Integration; Effectiveness 185189 Section 10.11 Survival of Representations and Warranties 186189 Section 10.12 Severability 186189 Section 10.13 Replacement of Lenders 186189 Section 10.14 Governing Law; Jurisdiction; Etc. 187190 Section 10.15 Waiver of Jury Trial 188191 Section 10.16 California Judicial Reference 188192 Section 10.17 No Advisory or Fiduciary Responsibility 189192 Section 10.18 Electronic Execution of Assignments and Certain Other Documents 189193 Section 10.19 USA PATRIOT Act 189193 Section 10.20 Judgment Currency 190193 Section 10.21 Pari Passu Intercreditor Agreement 190194 Section 10.22 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. 191194 Section 10.23 Acknowledgement Regarding Any Supported QFCs 191194 v
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SCHEDULES 2.01 Commitments and Applicable Percentages 4.01(a)(ii) Closing Date Collateral Documents 4.01(a)(iv) Local Legal Counsel Opinions 5.12 Subsidiaries; Other Equity Investments (including Parts (a), (b) and (c)) 7.01 Existing Liens 7.02 Existing Investments 7.03 Existing Indebtedness 7.08 Transactions with Affiliates 10.02 Administrative Agent’s Office; Certain Addresses for Notices EXHIBITS Form of A-1 Committed Loan Notice A-2 Conversion/Continuation Notice A-3 Prepayment Notice A-4 [Reserved] B [Reserved] C-1 Revolving Credit Note C-2 Incremental Term Loan Note D Compliance Certificate E-1 Assignment and Assumption E-2 Administrative Questionnaire F Joinder Agreement G Guarantee and Collateral Agreement H-1 through H-4 U.S. Tax Compliance Certificates I Form of Pari Passu Intercreditor Agreement J Form of Junior Lien Intercreditor Agreement K Solvency Certificate vi
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CREDIT AGREEMENT This CREDIT AGREEMENT (as in effect prior to the First Amendment Effective Date, the “Existing Credit Agreement”, the Existing Credit Agreement, as amended by that certain First Amendment, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time after the date hereof, this “Agreement”) is entered into as of March 10, 2022, among BELLRING BRANDS, INC., a Delaware corporation, formerly known as BellRing Distribution, LLC, a Delaware limited liability company (the “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), JPMORGAN CHASE BANK, N.A., as Administrative Agent, and each L/C Issuer (as defined below). WITNESSETH Whereas, the Borrower has requested that (a)pursuant to the Existing Credit Agreement, the Revolving Credit Lenders provide Original(as defined in the Existing Credit Agreement) extended credit commitments to the Borrower in the form of, and pursuant to, Revolving Credit Commitments (as defined in the Existing Credit Agreement) in an aggregate amount at any time outstanding not in excess of $250,000,000 and (b) the L/C Issuers agree to issue Letter of Credit in an aggregate amount available to drawn not in excess of; and Whereas, the Borrower, JPMorgan Chase Bank, N.A., in its capacity as Administrative Agent, and the 2025 Revolving Credit Lenders party thereto have entered into that certain First Amendment in order to (a)(i) extend 2025 Revolving Credit Commitments and borrow and make loans under the 2025 Revolving Credit Commitment and (ii) refinance in whole the existing Original Revolving Credit Commitments and Original Revolving Credit Loans, and (b) amend the Letter ofExisting Credit Sublimit, in each case, onAgreement subject to the terms and subject to the conditions set forthprovided therein and herein; and Whereas, the 2025 Revolving Credit Lenders have indicated their willingness to lend and each L/C Issuer has indicated its willingness to issue letters of credit, in each case, on the terms and subject to the conditions set forth herein. Now, therefore, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows: Article 1.DEFINITIONS AND ACCOUNTING TERMS Section 1.01Defined Terms . As used in this Agreement, the following terms shall have the meanings set forth below: 1
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“2021 Engagement Letter” means the Engagement Letter, dated November 29, 2021, among the Borrowerand the Arrangers party thereto. “2025 Engagement Letter” means the Engagement Letter, dated August 11, 2025, among theBorrower and the Arrangers party thereto. “2025 Incremental Revolving Credit Commitments” means the “2025 Incremental Revolving CreditCommitments” as such term is defined in the First Amendment. As of the First Amendment Effective Date,the aggregate amount of the 2025 Incremental Revolving Credit Commitments is $300,000,000. “2025 Refinancing Revolving Credit Commitments” means the “2025 Refinancing Revolving CreditCommitments” as such term is defined in the First Amendment. As of the First Amendment Effective Date,the aggregate amount of the 2025 Refinancing Revolving Credit Commitments is $200,000,000. “2025 Revolving Credit Commitments” means the “2025 Revolving Credit Commitments” as suchterm is defined in the First Amendment (which includes, for the avoidance of doubt, the 2025 RefinancingRevolving Credit Commitments and the 2025 Incremental Revolving Credit Commitments). As of the FirstAmendment Effective Date, the aggregate amount of the 2025 Revolving Credit Commitments is$500,000,000. “2025 Revolving Credit Facility” means, at any time, the aggregate amount of the 2025 RevolvingCredit Lenders’ 2025 Revolving Credit Commitments at such time and the Credit Extensions madethereunder. “2025 Revolving Credit Facility Arrangers” means JPMorgan Chase Bank, N.A., BOFA Securities,Inc., Barclays Bank PLC, Citibank, N.A., Coöperatieve Rabobank U.A., New York Branch, Morgan StanleySenior Funding, Inc., PNC Capital Markets LLC, Truist Securities, Inc., UBS Securities LLC and WellsFargo Securities, LLC, in their capacities as joint lead arrangers and joint bookrunners. “2025 Revolving Credit Lender” means each “2025 Revolving Credit Lender” as such term is definedin the First Amendment. “2025 Revolving Credit Loan” means the Revolving Credit Loans made by the 2025 Revolving CreditLenders to the Borrower under the 2025 Revolving Credit Commitments pursuant to Section 2.01. “Act” has the meaning specified in Section 10.19. “Additional Refinancing Lender” has the meaning specified in Section 2.17. “Adjusted Daily Simple RFR” means, with respect to any RFR Borrowing denominated in Sterling, an interest rate per annum equal to (a) the Daily Simple RFR for Sterling, plus (b) 0.0326%; provided that if the Adjusted Daily Simple RFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement. “Adjusted Daily Simple SOFR” means, with respect to any Borrowing denominated in U.S. Dollars, an interest rate per annum equal to (a) the Daily Simple SOFR, plus (b) 0.10%; provided that if the Adjusted Daily Simple SOFR Rate as so determined would be 2
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less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement. “Adjusted Eurodollar Rate” means, with respect to any Borrowing denominated in Euros for any InterestPeriod, an interest rate per annum equal to (a) the Eurodollar Rate for such Interest Period multiplied by (b) theStatutory Reserve Rate; provided that if the Adjusted Eurodollar Rate as so determined would be less than theFloor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement. “Adjusted Term SOFR Rate” means, with respect to any Borrowing denominated in U.S. Dollars for any Interest Period, an interest rate per annum equal to (a) Term SOFR for such Interest Period, plus (b) the Applicable SOFR Adjustment; provided that if the Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement. “Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as administrative agent underany of the Loan Documents, or any successor administrative agent. “Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account asset forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to timenotify the Borrower and the Lenders. “Administrative Questionnaire” means an Administrative Questionnaire in substantially the form ofExhibit E-2 or any other form approved by the Administrative Agent. “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK FinancialInstitution. “Affected Foreign Subsidiary” means any Foreign Subsidiary to the extent such Foreign Subsidiary actingas a Guarantor, or having a Lien granted in its Equity Interests to secure the Obligations or granting a Lien on anyof its assets to secure the Obligations, would, in any case, cause a Deemed Dividend Problem. “Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one ormore intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “Agreed Currencies” means U.S. Dollars and each Alternative Currency. “Agent” means the Administrative Agent. “Agent Parties” has the meaning specified in Section 10.02(c). “Aggregate Commitments” means the Commitments of all the Lenders. “Agreement” has the meaning specified in the introductory paragraph hereto. “Agreement Currency” has the meaning specified in Section 10.20. “Alternative Currency” means Euros and Sterling. 3
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“Annual Financial Statements” means the most recently delivered audited financial statements required tobe delivered pursuant to Section 6.01(a) of this Agreement (or, until such time as such financial statements are sorequired to be delivered, the audited financial statements of Old BRBR for the period ended September 30, 2021). “Anti-Corruption Laws” means any laws, rules and regulations of any jurisdiction applicable to theBorrower or any of its Restricted Subsidiaries from time to time concerning or relating to bribery or corruption ofpublic officials, including without limitation the U.S. Foreign Corrupt Practices Act of 1977, as amended. “Anti-Terrorism Laws” has the meaning specified in Section 5.19. “Applicable Percentage” means, with respect to any Lender at any time, the percentage (carried out to theninth decimal place) of the aggregate principal amount of all Commitments and, if applicable and withoutduplication, Loans of such Lender under the applicable Facility or Facilities at such time; provided that, withrespect to any Revolving Credit Facility, if the commitment of each Revolving Credit Lender to make RevolvingCredit Loans under such Revolving Credit Facility and the obligation of the L/C Issuers to make L/C CreditExtensions have been terminated pursuant to Section 8.02, or if the Revolving Credit Commitments in respectthereof have expired, then the Applicable Percentage of each Revolving Credit Lender in respect of such RevolvingCredit Facility shall be determined based on the Applicable Percentage of such Revolving Credit Lenderimmediately prior to such termination and after giving effect to any subsequent assignments. The initial ApplicablePercentage of each 2025 Revolving Credit Lender in respect of the 2025 Revolving Credit Facility is set forthopposite the name of such 2025 Revolving Credit Lender on Schedule 2.01Annex I to the First Amendment or inthe Assignment and Assumption pursuant to which such 2025 Revolving Credit Lender becomes a party hereto, asapplicable. The Applicable Percentage of any Revolving Credit Lender is subject to adjustment as provided inSection 2.16. “Applicable Rate” means in respect of Original2025 Revolving Credit Loans, (i) from the ClosingFirstAmendment Effective Date to the date following the ClosingFirst Amendment Effective Date on which aCompliance Certificate is delivered pursuant to Section 6.02(a) in respect of the first full fiscal quarter ending afterthe ClosingFirst Amendment Effective Date, 2.001.00% per annum for Base Rate Loans that are RevolvingCredit Loans and 3.002.00% per annum for Eurodollar Rate Loans, RFR Loans and Term SOFR loans that areRevolving Credit Loans and Letter of Credit Fees and (ii) thereafter, the applicable percentage per annum set forthbelow determined by reference to the Secured Net Leverage Ratio as set forth in the most recent ComplianceCertificate received by the Administrative Agent pursuant to Section 6.02(a): PricingLevel Secured NetLeverage Ratio Base Rate Eurodollar Rate Loans/TermSOFR/RFR Loans/Letters ofCredit 1 > 3.50 to 1.00 1.75% 2.75% 3.75% 2 < 3.50 to 1.00 and > 2.50 to 1.00 1.50% 2.50% 3.50% 4
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3 < 2.50 to 1.00 and > 1.50 to 1.00 1.25% 2.25% 3.25% 4 < 1.50 to1.00 1.00% 2.00% 3.00% Any increase or decrease in the Applicable Rate resulting from a change in the Secured Net Leverage Ratio shall become effective as of the firstthird Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 1 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered (and thereafter the Pricing Level otherwise determined in accordance with this definition shall apply). Furthermore, and notwithstanding anything to the contrary contained in this definition, the Applicable Rate in respect of any Incremental Term Loans, any Refinancing Term Loans or any Other Revolving Commitments (and any Other Revolving Loans thereunder) shall be the applicable percentages per annum set forth in the relevant Joinder Agreement or Refinancing Amendment, as applicable. Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b). For the avoidance of doubt, for periods prior to the First Amendment Effective Date, the “Applicable Rate” shall be as defined in the Existing Credit Agreement, and the foregoing rates shall be deemed effective on and after the First Amendment Effective Date. “Applicable Revolving Credit Percentage” means with respect to any Revolving Credit Lender at anytime, such Revolving Credit Lender’s Applicable Percentages in respect of the Revolving Credit Facilities at suchtime. “Applicable SOFR Adjustment” means the percentage set forth below for the corresponding Interest Period that is then in effect with respect to each Term SOFR Loan: Interest Period Percentage Up to andincluding 1-month 0.10% Greater than 1-month and up toand including 3-month 0.15% Greater than 3-month 0.25% 5
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“Applicable Time” means, with respect to any borrowings and payments in any Alternative Currency, thelocal time in the place of settlement for such Alternative Currency as may be reasonably determined by theAdministrative Agent or the applicable L/C Issuer to be necessary for timely settlement on the relevant date inaccordance with normal banking procedures in the place of payment. “Appropriate Lender” means, at any time, (a) with respect to Loans of any Class, the Lenders of suchClass and (b) with respect to Letters of Credit, (i) the relevant L/C Issuer and (ii) the Revolving Credit Lenders. “Approved Borrower Portal” has the meaning specified in Section 9.14. “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of aLender or (c) an entity or an Affiliate of an entity that administers or manages a Lender. “Arrangers” means (x) with respect to the Original Revolving Credit Facility, JPMorgan Chase Bank,N.A., BOFA Securities, Inc., Barclays Bank PLC, Citibank, N.A., Credit Suisse Loan Funding LLC, GoldmanSachs Bank USA, Morgan Stanley Senior Funding, Inc. and Wells Fargo Securities, LLC in their capacities as jointlead arrangers and joint bookrunners and (y) with respect to the 2025 Revolving Credit Facility, the 2025Revolving Credit Facility Arrangers. “Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or moreApproved Funds managed by the same investment advisor. “Assignment and Assumption” means an assignment and assumption entered into by a Lender and anEligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted bythe Administrative Agent, in substantially the form of Exhibit E-1 or any other form approved by theAdministrative Agent. “Attributable Indebtedness” means, on any date, in respect of any Capital Lease of any Person, thecapitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date inaccordance with GAAP. “Auction” has the meaning specified in Section 10.06(b)(vii)(A). “Availability Period” means, in respect of anythe 2025 Revolving Credit Facility, the period from andincluding the ClosingFirst Amendment Effective Date (or the date of the effectiveness of the applicableRevolving Credit Commitments in the case of any Revolving Credit Commitments other than the Original2025Revolving Credit Commitments) to the earliest of (i) the Maturity Date in respect of such Revolving Credit Facility,(ii) the date of termination of the Revolving Credit Commitments in respect of such Revolving Credit Facilitypursuant to Section 2.06 and (iii) the date of termination of the commitment of each Revolving Credit Lender inrespect of such Revolving Credit Facility to make Revolving Credit Loans under such Revolving Credit Facilityand of the obligation of the L/C Issuers to make L/C Credit Extensions in respect of such Revolving Credit Facilitypursuant to Section 8.02. “Available Amount” means, at any time, an amount equal to, without duplication: (a) the sum of: 6
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(1) (A) the sum of $125,000,000 and (B) the greater of (x) $50,000,000100,000,000 and (y) 20% of Consolidated EBITDA based on the Most Recent Financial Statements; plus (2) an amount, not less than zero, determined on a cumulative basis equal to the Borrower Retained ECF Amount; plus (3) the amount of any capital contributions or other proceeds of issuances of Equity Interests (other than Disqualified Equity Interests) received as cash and Cash Equivalents by the Borrower, plus the fair market value, as determined in good faith by the Borrower, of marketable securities or other property received by the Borrower as a capital contribution or in return for issuances of Equity Interests (other than Disqualified Equity Interests), in each case, during the period from and including the day immediately following the Closing Date through and including such time; plus (4) the aggregate principal amount of any Indebtedness or Disqualified Equity Interests, in each case, of the Borrower and/or any Restricted Subsidiary issued after the Closing Date (other than Indebtedness or Disqualified Equity Interests issued to the Borrower or a Restricted Subsidiary) which has been converted into or exchanged for Equity Interests (other than Disqualified Equity Interests) of the Borrower, together with the fair market value of any Cash Equivalents and the fair market value (as reasonably determined by the Borrower) of any other property or assets received by the Borrower or such Restricted Subsidiary upon such exchange or conversion, in each case, during the period from and including the day immediately following the Closing Date through and including such time; plus (5) the net proceeds received by the Borrower or any Restricted Subsidiary during the period from and including the day immediately following the Closing Date through and including such time in connection with the Disposition to a Person (other than the Borrower or any Restricted Subsidiary) of any Investment made pursuant to Section 7.02(o)(2); provided that such amount does not exceed the amount of such Investment made pursuant to Section 7.02(o)(2); plus (6) to the extent not already reflected as a return of capital with respect to such Investment for purposes of determining the amount of such Investment, the cash proceeds received by the Borrower and/or any Restricted Subsidiary during the period from and including the day immediately following the Closing Date through and including such time in respect of any Investment made pursuant to Section 7
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7.02(o)(2) (in an amount not to exceed the original amount of such Investment made pursuant to Section 7.02(o)(2)); plus (7) an amount equal to the sum of (A) the amount of any Investments by the Borrower and/or any Restricted Subsidiary pursuant to Section 7.02(o)(2) in any Unrestricted Subsidiary (in an amount not to exceed the original amount of such Investment made pursuant to Section 7.02(o)(2)) that has been re-designated as a Restricted Subsidiary or has been merged, consolidated or amalgamated with or into, or is liquidated, wound up or dissolved into, the Borrower or any Restricted Subsidiary and (B) the fair market value (as reasonably determined by the Borrower) of the property or assets of any Unrestricted Subsidiary that have been transferred, conveyed or otherwise distributed (in an amount not to exceed the original amount of the Investment in such Unrestricted Subsidiary made pursuant to Section 7.02(o)(2)) to the Borrower and/or any Restricted Subsidiary, in each case, during the period from and including the day immediately following the Closing Date through and including such time; plus (8) the amount of Declined Proceeds; minus (b) an amount equal to the sum of (1) Investments made pursuant to Section 7.02(o)(2), (2)Restricted Payments made pursuant to Section 7.06(e)(2) and (3) payments, redemptions, purchases,defeasements or other satisfactions of Restricted Indebtedness made pursuant to Section 7.14(d), in eachcase, made after the Closing Date and prior to such time, or contemporaneously therewith. “Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark for any Agreed Currency, as applicable, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making payments of interest calculated pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 3.08. “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicableResolution 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 ofDirective 2014/59/EU of the European Parliament and of the Council of the European Union, the implementinglaw, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EUBail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom BankingAct 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdomrelating to the resolution of unsound or failing banks, investment firms or other 8
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financial institutions or their affiliates (other than through liquidation, administration or other insolvencyproceedings). “Bank Guarantee” means any bank guarantee, demand guarantee, bank bond or comparable instrumentissued or to be issued pursuant to Section 2.03(a) by a Bank Guarantee Issuer or Affiliate thereof in form andsubstance satisfactory to the issuer thereof. “Bank Guarantee Issuer” means any Revolving Credit Lender that agrees, in its sole discretion, to issueany Bank Guarantee pursuant hereto, in its capacity as issuer of such Bank Guarantee. “Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect onsuch day, (b) the NYFRB Rate in effect on such day plus ½ of 1.00% and (c) the Adjusted Term SOFR Rate for aone month Interest Period as published two U.S. Government Securities Business Days prior to such day (or if suchday is not a U.S. Government Securities Business Day, the immediately preceding U.S. Government SecuritiesBusiness Day) plus 1.00%; provided that for the purpose of this definition, the Adjusted Term SOFR Rate for anyday shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time on such day theAdjusted Term SOFR Rate is published in accordance with clause (c) (or any amended publication time for theTerm SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR ReferenceRate methodology). Any change in the Base Rate due to a change in the Prime Rate, the NYFRB Rate or theAdjusted Term SOFR Rate shall be effective from and including the effective date of such change in the PrimeRate, the NYFRB Rate or the Adjusted Term SOFR Rate, respectively. If the Base Rate is being used as analternate rate of interest pursuant to Section 3.08 (for the avoidance of doubt, only until the BenchmarkReplacement has been determined pursuant to Section 3.08(a)), then the Base Rate shall be the greater of clauses(a) and (b) above and shall be determined without reference to clause (c) above. “Base Rate Loan” means a Revolving Credit Loan or a Term Loan that bears interest based on the BaseRate. “Benchmark” means, initially, with respect to any (a) RFR Loan in any Agreed Currency, the applicableRelevant Rate for such Agreed Currency or (b) Term Benchmark Loan, the Relevant Rate for such AgreedCurrency; provided that if a Benchmark Transition Event, and the related Benchmark Replacement Date haveoccurred with respect to the applicable Relevant Rate or the then-current Benchmark for such Agreed Currency,then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacementhas replaced such prior benchmark rate pursuant to clause (a) of Section 3.08. “Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date; provided that, in the case of any Loan denominated in an Alternative Currency, “Benchmark Replacement” shall mean the alternative set forth in clause (b) below: (a) in the case of any Loan denominated in U.S. Dollars, the Adjusted Daily Simple SOFR; (b) the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (A) any 9
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selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body and (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for syndicated credit facilities denominated in the applicable Agreed Currency at such time in the United States and (ii) the related Benchmark Replacement Adjustment; If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than theFloor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the otherLoan Documents. “Benchmark Replacement Adjustment” means, with respect to any replacement of the then-currentBenchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor forany setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating ordetermining such spread adjustment, (which may be a positive or negative value or zero) that has been selected bythe Administrative Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (a)any selection or recommendation of a spread adjustment, or method for calculating or determining such spreadadjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement bythe Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining suchspread adjustment, for the replacement of such Benchmark with the applicable Unadjusted BenchmarkReplacement for syndicated credit facilities denominated in the applicable Agreed Currency at such time. “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement,any technical, administrative or operational changes (including changes to the definition of “Base Rate,” thedefinition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “RFRBusiness Day,” the definition of “Interest Period,” timing and frequency of determining rates and making paymentsof interest, timing of request for credit extension and other technical or administrative matters) that theAdministrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmarkand to permit the administration thereof by the Administrative Agent in a manner substantially consistent withmarket practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is notadministratively feasible or if the Administrative Agent determines that no market practice for the administration ofsuch Benchmark exists, in such other manner of administration as the Administrative Agent decides is reasonablynecessary in connection with the administration of this Agreement and the other Loan Documents). “Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark: (c) (i) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or 10
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(d) (ii) in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non- representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date. For the avoidance of doubt, (x) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (y) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (i) or (ii) above with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof). “Benchmark Transition Event” means with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark: (a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such 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 any Available Tenor of such Benchmark (or such component thereof); (b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, the central bank for the Agreed Currency applicable to such Benchmark, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such 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 any Available Tenor of such Benchmark (or such component thereof); or (c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such 11
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component thereof) are no longer, or as of a specified future date will no longer be, representative. For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof). “Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (i) or (ii) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.08 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.08. “Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as such term is used in Section 13(d)(3) of the Exchange Act), such “person” shall be deemed to have beneficial ownership of all securities that such “person” has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition. “Beneficial Ownership Certification” means a certification regarding beneficial ownership 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”. “Borrower” has the meaning specified in the introductory paragraph hereto. “Borrower Communications” means, collectively, any Committed Loan Notice, notice of prepayment, notice requesting the issuance, amendment or extension of a Letter of Credit or other notice, demand, communication, information, document or other material provided by or on behalf of the Borrower pursuant to any Loan Document or the transactions contemplated therein which is distributed by the Borrower to the Administrative Agent through an Approved Borrower Portal. “Borrower Materials” has the meaning specified in Section 6.02. 12
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“Borrower Retained ECF Amount” means, as at any date of determination, an amount equal to the Borrower Retained ECF Percentage of the Consolidated Excess Cash Flow of the Borrower for each Fiscal Year beginning with the Fiscal Year commencing October 1, 2021 through and including the last day of the most recently completed Fiscal Year with respect to which the Administrative Agent has received the Compliance Certificate required to be delivered pursuant to Section 6.02(a). “Borrower Retained ECF Percentage” means, for any given Fiscal Year, 50%; provided that if, as of the last day of such Fiscal Year, the Secured Net Leverage Ratio is (x) less than or equal to 3.00:1.00 but greater than 2.25:1.00, the Borrower Retained ECF Percentage shall be 75% or (y) less than or equal to 2.25:1.00, the Borrower Retained ECF Percentage shall be 100%. “Borrowing” means a Revolving Credit Borrowing of a particular Class, a Refinancing Term Loan Borrowing or an Incremental Borrowing, as the context may require. “Business Day” means (a) any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close, (b) with respect to all notices, determinations, fundings and payments in connection with Term SOFR or any Term SOFR Loans, the term “Business Day” shall exclude any day that is not a U.S. Government Securities Business Day, (c) when used in connection with an RFR Loan, the term “Business Day” shall exclude any day that is not an RFR Business Day and (d) when used in connection with a Eurodollar Rate or any Eurodollar Rate Loan, the term “Business Day” shall exclude any day that is not a TARGET Day. “Capital Expenditures” means, with respect to any Person for any period, any expenditure in respect of the purchase or other acquisition or maintenance of any fixed or capital asset, in each case, that areis capitalized in accordance with GAAP. “Capital Lease” means, with respect to any Person, any lease that is required by GAAP to be capitalized on a balance sheet of such Person. “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent or any L/C Issuer (as applicable) and the Revolving Credit Lenders, as collateral for L/C Obligations or obligations of Revolving Credit Lenders to fund participations in respect thereof (as the context may require), cash or deposit account balances or, if the applicable L/C Issuer benefiting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to (a) the Administrative Agent and (b) the applicable L/C Issuer. “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 any of the following types of Investments, to the extent owned by the Borrower or any of its Restricted Subsidiaries free and clear of all Liens (other than Liens created under the Collateral Documents and other Liens permitted hereunder): 13
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(d) readily marketable obligations issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof having maturities of not more than two years from the date of acquisition thereof; provided that the full faith and credit of the United States of America is pledged in support thereof; (e) time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the United States of America or Canada, any state or province thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States of America, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause (c) of this definition and (iii) has combined capital and surplus of at least $1,000,000,000, in each case with maturities of not more than 365 days from the date of acquisition thereof; (f) commercial paper issued by any Person organized under the laws of any state of the United States of America and maturing no more than two years from the time of the acquisition thereof, and having, at the time of acquisition thereof, a rating of A-1 (or the then equivalent grade) or better from S&P or P-1 (or the then equivalent grade) or better from Moody’s; (g) Investments, classified in accordance with GAAP as current assets of the Borrower or any of its Restricted Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, which have portfolios which are limited solely to Investments of the character, quality and maturity described in clauses (a), (b) and (c) of this definition; and (h) solely with respect to Foreign Subsidiaries, investments of the types and maturities described in clauses (a) through (d) above issued, where relevant, by any commercial bank of recognized international standing chartered in the country where such Foreign Subsidiary is domiciled having unimpaired capital and surplus of at least $500,000,000. “Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, card services (including services related to credit cards, including purchasing and commercial cards, prepaid cards, including payroll, stored value and gift cards, merchant services processing and debit cards), electronic funds transfer and other cash management arrangements. “Cash Management Bank” means any Person that, (a) at the time it enters into a Cash Management Agreement with any Loan Party, is a Lender, the Administrative Agent or an Arranger or an Affiliate of a Lender, the Administrative Agent or an Arranger, in its capacity as a party to such Cash Management Agreement, and (b) in the case of any Cash Management Agreement entered into prior to, and existing on, the Closing Date, any Person that is, on the Closing Date, a Lender, the Administrative Agent or an Arranger or Affiliate of a Lender, the 14
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Administrative Agent or an Arranger, in its capacity as a party to such Cash Management Agreement. “Central Bank Rate” means, the greater of (i) (x) for any Loan denominated in Sterling, the Bank of England (or any successor thereto)’s “Bank Rate” as published by the Bank of England (or any successor thereto) from time to time plus the applicable Central Bank Rate Adjustment and (y) for any Loan denominated in Euro, one of the following three rates as may be selected by the Administrative Agent in its reasonable discretion plus the applicable Central Bank Rate Adjustment: (1) the fixed rate for the main refinancing operations of the European Central Bank (or any successor thereto), or, if that rate is not published, the minimum bid rate for the main refinancing operations of the European Central Bank (or any successor thereto), each as published by the European Central Bank (or any successor thereto) from time to time, (2) the rate for the marginal lending facility of the European Central Bank (or any successor thereto), as published by the European Central Bank (or any successor thereto) from time to time or (3) the rate for the deposit facility of the central banking system of the Participating Member States, as published by the European Central Bank (or any successor thereto) from time to time and (ii) the Floor. “Central Bank Rate Adjustment” means, for any day, for any Loan denominated in (a) Sterling, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the average of Adjusted Daily Simple RFR for borrowings in Sterling for the five (5) most recent RFR Business Days preceding such day for which SONIA was available (excluding, from such averaging, the highest and the lowest such Adjusted Daily Simple RFR applicable during such period of five (5) RFR Business Days) minus (ii) the Central Bank Rate in respect of Sterling in effect on the last RFR Business Day in such period and (b) Euro, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the average of the Adjusted Eurodollar Rate for the five most recent Business Days preceding such day for which the EURIBOR Screen Rate was available (excluding, from such averaging, the highest and the lowest Adjusted Eurodollar Rate applicable during such period of five Business Days) minus (ii) the Central Bank Rate in respect of Euro in effect on the last Business Day in such period. For purposes of this definition, the term Central Bank Rate shall be determined disregarding clause (B) of the definition of such term. “CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, and any rules or regulations promulgated thereunder. “CFC” means a Subsidiary of the Borrower that is a “controlled foreign corporation” within the meaning of Section 957 of the Code. “Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority; 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 15
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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 United States or foreign regulatory authorities, 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 the occurrence of any of the following: (i) the sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Borrower and its Subsidiaries taken as a whole to any “person” (as such term is used in Section 13(d)(3) of the Exchange Act); (j) the adoption of a plan relating to the liquidation or dissolution of the Borrower; (k) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as defined above) becomes the Beneficial Owner, directly or indirectly, of 50% or more of the Voting Stock of the Borrower, measured by voting power rather than number of shares; or (l) a “Change of Control”, “Change in Control” or other substantively similar term under any of the Senior Notes or any other Indebtedness of the Borrower or any of its Restricted Subsidiaries with an aggregate principal amount in excess of the Threshold Amount (to the extent that the occurrence of such event permits the holders of Indebtedness thereunder to accelerate the maturity thereof or to resell such other Indebtedness to the Borrower, or requires the Borrower to repay, or offer to repurchase, such Indebtedness prior to the stated maturity thereof). (m) Notwithstanding the foregoing, the consummation of any of the Transactions shall not give rise to a Change of Control. “Class” (a) when used with respect to any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular class of Loans or Commitments, (b) when used with respect to Commitments, refers to whether such Commitments are Revolving Credit Commitments, 2025 Revolving Credit Commitments, Incremental Revolving Credit Commitments, Other Revolving Commitments of a given Refinancing Series, Incremental Term Loan Commitments or Refinancing Term Commitments of a given Refinancing Series and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Original2025 Revolving Credit Loans, Incremental Revolving Loans, Other Revolving Loans of a given Refinancing Series, Incremental Term Loans or Refinancing Term Loans of a given Refinancing Series. Loans that are not fungible for United States federal income tax purposes shall be construed to be in different Classes or tranches. Commitments that, if and when drawn in the form of Loans, would yield Loans that are construed to be in different Classes or tranches pursuant to the immediately preceding sentence shall be construed to be in different Classes or tranches of Commitments corresponding to such 16
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Loans. There shall be no more than an aggregate of two Classes of revolving credit facilities and two Classes of term loan facilities under this Agreement. “Closing Date” means the first date all the conditions precedent referred to in Section 4.01 are satisfied or waived in accordance with Section 10.01, which date is March 10, 2022. “CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator). “Code” means the Internal Revenue Code of 1986, as amended (unless otherwise provided herein). “Collateral” means all of the “Collateral” referred to in the Collateral Documents and all of the other property provided as collateral security under the terms of the Collateral Documents. “Collateral Agreement” means the guarantee and collateral agreement dated as of March 10, 2022 executed and delivered by the Loan Parties and substantially in the form of Exhibit G. “Collateral Documents” means, collectively, the Collateral Agreement, collateral assignments, supplements to all of the foregoing, security agreements, pledge agreements, control agreements or other similar agreements delivered to the Administrative Agent pursuant to Section 4.01(a)(ii) or 6.11, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties. “Co-Managers” means BMO Capital Markets Corp., Coöperatieve Rabobank U.A., New York Branch, Truist Securities, Inc., and Stifel Bank & Trust, in their capacities as co-managers. “Commitment” means a Revolving Credit Commitment, a 2025 Revolving Credit Commitment, an Incremental Revolving Credit Commitment, an Incremental Term Loan Commitment, a Refinancing Term Commitment or an Other Revolving Commitment, as the context may require. “Commitment Fee Rate” means (a) from the ClosingFirst Amendment Effective Date to the date following the ClosingFirst Amendment Effective Date on which a Compliance Certificate is delivered pursuant to Section 6.02(a) in respect of the first full fiscal quarter following the ClosingFirst Amendment Effective Date, 0.250% and (b) thereafter, the applicable percentage per annum set forth below determined by reference to the Secured Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a): Pricing Level Secured Net Leverage Ratio Commitment Fee Rate 1 > 3.50 to 1.00 0.375%0.350% 17
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2 < 3.50 to 1.00 and > 2.50 to 1.00 0.300% 3 < 2.50 to 1.00 0.250% Any increase or decrease in the Commitment Fee Rate resulting from a change in the Secured Net Leverage Ratio shall become effective as of the firstthird Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 1 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered (and thereafter the Pricing Level otherwise determined in accordance with this definition shall apply). Notwithstanding anything to the contrary contained in this definition, the determination of the CommitmentFee Rate for any period shall be subject to the provisions of Section 2.10(b). For the avoidance of doubt, for time periods prior to the First Amendment Effective Date, the“Commitment Fee Rate” shall be as defined in the Existing Credit Agreement, and the foregoing rates shallbe deemed effective on and after the First Amendment Effective Date. “Committed Loan Notice” means a notice of (a) a Revolving Credit Borrowing or (b) an Incremental Borrowing, which shall be substantially in the form of Exhibit A-1. “Common Stock” means, with respect to any Person, any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or nonvoting) of such Person’s common stock whether or not outstanding on the Closing Date, and includes, without limitation, all series and classes of such common stock. “Compliance Certificate” means a certificate substantially in the form of Exhibit D. “Consolidated Current Assets” means, as at any date of determination, the total assets of a Person and its Restricted Subsidiaries on a consolidated basis that may properly be classified as current assets in conformity with GAAP, excluding cash and Cash Equivalents. “Consolidated Current Liabilities” means, as at any date of determination, the total liabilities of a Person and its Restricted Subsidiaries on a consolidated basis that may properly be classified as current liabilities in conformity with GAAP, excluding the current portion of long term debt. “Consolidated EBITDA” means, at any date of determination, an amount equal to Consolidated Net Income of the Borrower and its Restricted Subsidiaries on a consolidated basis for the most recently completed Measurement Period, plus (i) the following, without duplication, to the extent (other than in the case of clauses (n) and (p)) deducted in calculating such Consolidated Net Income: (n) Consolidated Interest Charges, plus 18
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(o) the provision for federal, state, local and foreign income and franchise taxes payable (calculated net of federal, state, local and foreign income tax credits) and other taxes, interest and penalties included under GAAP in income tax expense (provided that such amounts in respect of any Restricted Subsidiary shall be included in this clause (b) only to the extent that a corresponding amount would be permitted at the date of determination to be dividended or distributed to the Borrower by such Restricted Subsidiary without prior approval (that has not been obtained), pursuant to the terms of its Organization Documents and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to such Restricted Subsidiary or its shareholders, partners or members), plus (p) depreciation and amortization expenses (including amortization of goodwill and other intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period), plus (q) other non-recurring expenses, write-offs, write-downs or impairment charges which do not represent a cash item in such period (or in any future period) (excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period and any non-cash charge, expense or loss relating to write-offs, write-downs or reserves with respect to accounts receivable or inventory), plus (r) non-cash charges or expenses related to stock-based compensation and other non-cash charges or non-cash losses (including extraordinary, unusual or non-recurring non-cash losses) incurred or recognized, plus (s) cash or non-cash charges constituting fees and expenses incurred in connection with the Transactions entered into or consummated on or around the Closing Date or in connection with the First Amendment on or around the First Amendment Effective Date and any other Transactions with respect to certain contributions of assets and liabilities among the Company and its Restricted Subsidiaries and with respect to the consummation of the debt for equity exchange, in each case, in connection with or as contemplated by the Transaction Agreement (as in effect on the date of this Agreement, or as amended, modified or restated from time to time in a manner not materially adverse to the interests of the Lenders), plus (t) unrealized and realized net losses in the fair market value of any arrangements under Swap Contracts and losses, charges and expenses attributable to the early extinguishment or conversion of Indebtedness, arrangements under Swap Contracts or other derivative instruments (including deferred financing expenses written off and premiums paid), plus (u) any expenses or charges related to any issuance of Equity Interests or debt securities, Investments (whether or not consummated), acquisitions (whether or not consummated), Dispositions (whether or not consummated), recapitalization or the incurrence, modification or repayment of Indebtedness permitted to be incurred by this 19
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Agreement (including a refinancing thereof) (whether or not successful), including any amendment or other modification of the Obligations or other Indebtedness, plus (v) one-time deal advisory, financing, legal, accounting, and consulting cash expenses incurred by the Borrower and its Restricted Subsidiaries in connection with any Permitted Acquisitions or other Investment in the nature of an acquisition not constituting the consideration for any such Permitted Acquisition or other Investment in the nature of an acquisition, plus (w) non-cash losses and expenses resulting from fair value accounting (as permitted by Accounting Standard Codification Topic No. 825-10-25 – Fair Value Option or any similar accounting standard), plus (x) non-cash losses on sales of Receivables that are Disposed of in connection with a Qualified Receivables Transaction permitted hereunder, plus (y) extraordinary, unusual or non-recurring cash charges and losses incurred or recognized, plus (z) any increase in cost of goods sold resulting from the write up of inventory attributable to purchase accounting treatment with respect to any acquisition, plus (aa) the amount of any expected cost savings, operating improvements and expense reductions, product margin synergies and other synergies (net of the amount of actual amounts realized) reasonably identifiable and factually supportable (in the good faith determination of the Borrower) related to (A) the Transactions and (B) after the Closing Date, permitted asset sales, mergers or other business combinations, acquisitions, Investments, Dispositions or divestitures, integration costs, inventory optimizations, other optimizations, facility consolidations and/or closings, operating improvements and expense reductions, restructurings, cost saving initiatives and other similar initiatives (in each case calculated on a pro forma basis as though such cost savings, operating improvements and expense reductions, product margin synergies and other synergies had been realized on the first day of such period and as if such cost savings, operating improvements and expense reductions, product margin synergies and other synergies were realized during the entirety of such period); provided that,such cost savings, operating improvements and expense reductions, product margin synergies and other synergies are reasonably expected to be realized within twenty four (24) months of the event giving rise thereto or the consummation of such transaction; provided, further, that with respect to clause (B) above, the aggregate amount of cost savings, operating improvements and expense reductions, product margin synergies and other synergies added-back pursuant to this clause (n) in any four consecutive fiscal quarter period, taken together with the aggregate amount of cost savings, operating expense reductions, other operating improvements and acquisition synergies added- back in connection with Permitted Acquisitions or other permitted Investments pursuant to clause (C) below, shall not exceed 25% of Consolidated EBITDA for such period prior to giving effect to this clause (n) and such clause (C) below, plus 20
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(ab) costs, charges, accruals, reserves or expenses attributable to the undertaking and/or implementation of cost savings initiatives or operating expense reductions, product margin synergies and other synergies and similar initiatives, integration, transition, reconstruction, decommissioning, recommissioning or reconfiguration of fixed assets for alternative uses, facilities opening and pre-opening, business optimization and other restructuring costs, charges, accruals, reserves and expenses including inventory optimization programs, software development costs and costs related to the closure or consolidation of facilities, branches or distribution centers, and plants, the closure, consolidation or transfer of production lines between facilities and curtailments, costs related to entry into new markets, consulting and other professional fees, signing costs and bonuses, retention or completion bonuses, executive recruiting costs, relocation expenses, severance payments, modifications to, or losses on settlement of, pension and post-retirement employee benefit plans, new systems design and implementation costs, and project startup costs, plus (ac) to the extent not otherwise included above, proceeds of business interruption insurance in an amount representing the earnings for the applicable period that such proceeds are intended to replace (whether or not received so long as such Person in good faith expects to receive the same within the next four fiscal quarters (it being understood that to the extent not actually received within such fiscal quarters, such proceeds shall be deducted in calculating Consolidated EBITDA for such fiscal quarters)), plus (ad) the amount of any earn-out and contingent consideration obligations incurred or accrued in connection with any Permitted Acquisition or other Investment in the nature of an acquisition and paid or accrued during such applicable period; and (ii) minus, without duplication, (x) unrealized and realized net gains included in Consolidated EBITDA for such Measurement Period in respect of hedging transactions and mark-to-market of Indebtedness denominated in foreign currencies resulting from the application of FASB ASC 830 or any similar accounting standard, (y) non-cash gains included in Consolidated Net Income for such Measurement Period (excluding any such non-cash gain to the extent it represents the reversal of an accrual or a reserve for a potential cash gain in any prior period), and (z) the amount added back in Consolidated EBITDA pursuant to clause (p) above, to the extent such business interruption proceeds were not received within the time period anticipated or required by such clause. If there has occurred a Permitted Acquisition or other Investment in the nature of an acquisition permitted by this Agreement during the applicable Measurement Period, or for purposes of calculating the pro forma Total Net Leverage Ratio or Secured Net Leverage Ratio after the applicable Measurement Period but on or prior to the Ratio Calculation Date in 21
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accordance with Section 1.09(b), Consolidated EBITDA shall be calculated on a Pro Forma Basis. Calculating Consolidated EBITDA on a “Pro Forma Basis” shall mean giving effect to any such Permitted Acquisition or other Investment in the nature of an acquisition, and any Indebtedness incurred or assumed in connection therewith, as follows: (A) any Indebtedness incurred or assumed in connection with such Permitted Acquisition or other permitted Investment in the nature of an acquisition was incurred or assumed on the first day of the applicable Measurement Period and remained outstanding, (B) the rate on such Indebtedness shall be calculated as if the rate in effect on the date of such Permitted Acquisition or other permitted Investment in the nature of an acquisition had been the applicable rate for the entire period (taking into account any interest rate Swap Contracts applicable to such Indebtedness), and (C) all income, depreciation, amortization, taxes, and expenses associated with the assets or entity acquired in connection with such Permitted Acquisition or other permitted Investment in the nature of an acquisition for the applicable period shall be calculated on a pro forma basis after giving effect to cost savings, operating expense reductions, other operating improvements and acquisition synergies that are reasonably identifiable and projected by the Borrower in good faith to be realized within twenty four (24) months after such Permitted Acquisition or other such permitted Investment in the nature of an acquisition (calculated on a pro forma basis as though such items had been realized on the first day of such period) as a result of actions taken by the Borrower or any Restricted Subsidiary in connection with such Permitted Acquisition or other permitted Investment and net of (x) the amount of actual benefits realized during such period from such actions that are otherwise included in the calculation of Consolidated EBITDA in each case from and after the first day of such Measurement Period and (y) the amount of all income, depreciation, amortization, taxes and expenses associated with any assets or entity acquired in connection with such Permitted Acquisition or other such permitted Investment that the Borrower reasonably anticipates will be divested pursuant to Section 7.05(k) or otherwise; provided that: (i) the aggregate amount of cost savings, operating expense reductions, other operating improvements and acquisition synergies added-back in connection with Permitted Acquisitions or other permitted Investments pursuant to this clause (C) in any four consecutive fiscal quarter period, taken together with the aggregate amount of cost savings, operating improvements and expense 22
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reductions, product margin synergies and other synergies added-back pursuant to clause (n) above, shall not exceed 25.00% of Consolidated EBITDA for such period prior to giving effect to this clause (C) and such clause (n); and (ii) at the time any such calculation pursuant to this clause (C) is made, the Borrower shall deliver to the Administrative Agent a certificate signed by a Responsible Officer (which may be the Compliance Certificate) setting forth reasonably detailed calculations in respect of the matters referred to in this clause (C), as well as the relevant factual support in respect thereof. Notwithstanding anything to the contrary contained herein, for any period that includes any of the fiscal quarters set forth below, Consolidated EBITDA (pro forma) for such fiscal quarter shall be deemed to be the amount set forth below opposite such fiscal quarter: Fiscal QuarterEnded Consolidated EBITDA March 31, 2021 $42,200,000 June 30, 2021 $70,500,000 September 30, 2021 $60,500,000 December 31, 2021 $59,800,000 “Consolidated Excess Cash Flow” means, for any period, an amount (if positive) equal to: (a) the sum, without duplication, of the amounts for such period of (i) Consolidated Net Income, plus, (ii) to the extent reducing Consolidated Net Income, the sum, without duplication, of amounts for non-cash charges reducing Consolidated Net Income, including for depreciation and amortization (excluding any such non-cash charge to the extent that it represents an accrual or reserve for a potential cash charge in any future period or amortization of a prepaid cash charge that was paid in a prior period), plus (iii) the Consolidated Working Capital Adjustment, minus (b) the sum, without duplication, of (i) the amounts for such period paid in cash by the Borrower and its Restricted Subsidiaries from operating cash flow (and not already reducing Consolidated Net Income) of (1) scheduled repayments (but not optional or mandatory prepayments) of Indebtedness for borrowed money of the Borrower and its Restricted Subsidiaries (excluding scheduled repayments of Revolving Credit Loans (or other loans which by their terms may be re-borrowed if prepaid) except to the extent the Revolving Credit Commitments (or commitments in respect of such other revolving loans) are permanently reduced in connection with such repayments) and scheduled repayments of obligations of the Borrower and its Restricted Subsidiaries under Capital Leases (excluding any interest expense portion thereof), (2) Capital Expenditures, (3) payments of the type described in clause (f) of the definition of Consolidated EBITDA, and (4) consideration in respect of Investments made pursuant to Section 7.02 (other than Section 7.02(a), (c), (g) or (p)) (and financed with internally 23
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generated cash (and not from the proceeds of Indebtedness)) plus (ii) other non-cash gains increasing Consolidated Net Income for such period (excluding any such non-cash gain to the extent it represents the reversal of an accrual or reserve for a potential cash gain in any prior period). “Consolidated Funded Indebtedness” means, as of any date of determination, for the Borrower and its Restricted Subsidiarieson a consolidated basis, the sum, without duplication, of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including the Obligations hereunder and any Indebtedness owing or paid to non-Affiliated third parties in respect of Receivables Program Obligations) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all purchase money Indebtedness, (c) all direct non-contingent obligations arising in connection with letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (d) all obligations to pay the deferred purchase price of property or services (other than (i) trade accounts payable in the ordinary course of business and (ii) contingent earn-outs, hold-backs and other deferred payment of consideration in Permitted Acquisitions), (e) Attributable Indebtedness in respect of Capital Leases, (f) all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) through (e) above of Persons other than the Borrower or any Restricted Subsidiary, and (g) all Indebtedness of the types referred to in clauses (a) through (f) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which the Borrower or a Restricted Subsidiary is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to the Borrower or such Restricted Subsidiary. “Consolidated Interest Charges” means, for any Measurement Period, consolidated interest expense (net of interest income) for such period whether paid or accrued (but without duplication if accrued and paid in the same period and, for purposes of clause (a) of the definition of Consolidated EBITDA, not including any such amount paid if previously accrued and added back in the prior period) and whether or not capitalized (including, without limitation, and without duplication, amortization of original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Leases, imputed interest with respect to Attributable Indebtedness, commissions, discounts and other fees and charges incurred in respect of letters of credit or bankers’ acceptances, discounts, yield and other fees and charges (including any interest expense) related to any Qualified Receivables Transaction owing or paid to non-Affiliated third parties, dividend and distribution payments made in cash on any Disqualified Equity Interests, and net payments, if any, pursuant to interest rate Swap Contracts, but excluding amortization of debt issuance costs), in each case, of or by the Borrower and its Restricted Subsidiaries on a consolidated basis for the most recently completed Measurement Period. “Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for the most recently completed Measurement Period to (b) Consolidated Interest Charges for such Measurement Period. 24
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“Consolidated Net Income” means, at any date of determination, the net income (or loss) of the Borrower and its Restricted Subsidiaries on a consolidated basis for the most recently completed Measurement Period taken as a single accounting period determined in conformity with GAAP; provided that Consolidated Net Income shall exclude, without duplication, (a) extraordinary gains and extraordinary non-cash losses for such Measurement Period, (b) the net income of any Restricted Subsidiary that is not a Loan Party (other than a Receivables Subsidiary) during such Measurement Period to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of such income is not permitted by operation of the terms of its Organization Documents or any agreement, instrument or Law applicable to such Restricted Subsidiary during such Measurement Period, except that the Borrower’s equity in any net loss of any such Restricted Subsidiary for such Measurement Period shall be included in determining Consolidated Net Income, (c) any income (or loss) for such Measurement Period of any Person if such Person is not a Restricted Subsidiary or is a Receivables Subsidiary, except that (x) the Borrower’s equity in the net income of any such Person for such Measurement Period shall be included in Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such Measurement Period to the Borrower or a Restricted Subsidiary as a dividend or other distribution (and in the case of a dividend or other distribution to a Restricted Subsidiary, such Restricted Subsidiary is not precluded from further distributing such amount to the Borrower as described in clause (b) of this proviso) and (y) any such loss for such Measurement Period shall be included to the extent funded with cash contributed by the Borrower or a Restricted Subsidiary, (d) any cancellation of debt income arising from a repurchase of Term Loans by the Borrower pursuant to Section 10.06(b)(vii) or any other early extinguishment of Indebtedness, hedging agreements or other similar instruments, (e) any (i) write-off or amortization made in such period of deferred financing costs and premiums paid or other expenses incurred directly in connection with any early extinguishment of Indebtedness, or (ii) good willgoodwill or other asset impairment charges, write-offs or write-downs, and (f) the effects of purchase accounting adjustments (including the effects of such adjustments pushed down to the Borrower and its Restricted Subsidiaries) in component amounts required or permitted by GAAP resulting from the application of purchase accounting in relation to any consummated acquisition or the amortization or write-off of any amounts thereof, net of taxes. “Consolidated Senior Secured Debt” means, as of any date of determination, without duplication, the aggregate principal amount of Consolidated Funded Indebtedness outstanding on such date that is secured by a Lien on any asset or property of the Borrower or any Restricted Subsidiary (including, for the avoidance of doubt, purchase money Indebtedness and Attributable Indebtedness in respect of Capital Leases). “Consolidated Total Assets” means, on any date of determination, the total assets of the Borrower and its Restricted Subsidiaries, determined in accordance with GAAP as shown on the most recent consolidated balance sheet of the Borrower delivered pursuant to Section 6.01(a) or (b) on or prior to such date or, for the period prior to the time any such statements are so delivered pursuant to Section 6.01(a) or (b), the financial statements for Old BRBR for the fiscal quarter ended December 31, 2021, in each case after giving pro forma effect to acquisitions or 25
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dispositions of Persons, divisions or lines of business that had occurred on or after such balance sheet date and on or prior to such date of determination. “Consolidated Working Capital” means, as at any date of determination, Consolidated Current Assets of the Borrower and its Restricted Subsidiaries less Consolidated Current Liabilities of the Borrower and its Restricted Subsidiaries. “Consolidated Working Capital Adjustment” means, for any period on a consolidated basis, the amount (which may be a negative number) by which Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end of such period. In calculating the Consolidated Working Capital Adjustment there shall be excluded the effect of reclassification during such period of current assets to long term assets and current liabilities to long term liabilities and the effect of any Permitted Acquisition during such period; provided, that there shall be included with respect to any Permitted Acquisition during such period an amount (which may be a negative number) by which the Consolidated Working Capital of the Person acquired in such Permitted Acquisition as at the time of such acquisition exceeds (or is less than) the Consolidated Working Capital of the Person acquired at the end of such period (in each case, substituting the Person acquired for the Borrower and its Restricted Subsidiaries in the calculation of such acquired Consolidated Working Capital). “Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. “Conversion/Continuation Notice” means a notice of (a) a conversion of Loans of a particular Class from one Type to the other or (b) a continuation of Term SOFR Loans or Eurodollar Rate Loans pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit A-2 or any other form approved by the Administrative Agent. “Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor. “Covenant Transaction” has the meaning specified in Section 1.09(d). “Credit Agreement Refinancing Indebtedness” means Indebtedness incurred solely by the Borrower in the form of one or more series or classes of Loans or Commitments under this Agreement, in each case, issued, incurred or otherwise obtained (including by means of the amendment, extension, refinancing, or renewal of existing Indebtedness) in exchange for, or to refinance, in whole or part, existing Term Loans (and/or Term Commitments) and Revolving Credit Loans (and/or Revolving Credit Commitments), or any then-existing Credit Agreement 26
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Refinancing Indebtedness (“Refinanced Debt”); provided that (i) such Indebtedness is secured by the Collateral on a pari passu basis with the Liens securing the other Obligations hereunder and is not secured by any property or assets other than the Collateral, (ii) such Indebtedness is not guaranteed by any Person other than the Guarantors, (iii) such Indebtedness is incurred solely to refinance, in whole or part, Refinanced Debt, and the proceeds thereof shall be substantially contemporaneously applied to prepay such Refinanced Debt, interest and any premium (if any) thereon, and fees and expenses incurred in connection with such Indebtedness, and any Term Commitments and/or Revolving Credit Commitments so refinanced shall be concurrently terminated, (iv) such Indebtedness (including, if such Indebtedness includes any Revolving Credit Commitments, the unused amount of such Revolving Credit Commitments) is in an original aggregate principal amount not greater than the aggregate principal amount of the Refinanced Debt (and, in the case of Refinanced Debt consisting, in whole or in part, of unused Revolving Credit Commitments, the applicable amount thereof), plus accrued and unpaid interest, any premium, and fees and expenses reasonably incurred in connection therewith, (v) such Indebtedness has a maturity no earlier, and a Weighted Average Life to Maturity no shorter, than the Refinanced Debt, (vi) the terms and conditions of such Indebtedness (except as otherwise provided above and with respect to pricing, premiums, fees, rate floors and optional prepayment or redemption terms) are substantially identical to the terms and conditions applicable to the Refinanced Debt, unless (x) such terms apply only after the Latest Maturity Date at the time such Indebtedness is established or (y) this Agreement is amended so that such terms are also applicable for the benefit of the Lenders under any then-existing Facilities and (vii) such Refinanced Debt shall be repaid, all accrued interest, fees, premiums (if any) and penalties in connection therewith shall be paid, and all commitments in respect thereof shall be terminated, on the date such Indebtedness is incurred. “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension. “Daily Simple RFR”means, for any day (an “RFR Interest Day”), an interest rate per annum equal to, for any RFR Loan denominated in Sterling, SONIA for the day that is five (5) RFR Business Days prior to (A) if such RFR Interest Day is an RFR Business Day, such RFR Interest Day or (B) if such RFR Interest Day is not an RFR Business Day, the RFR Business Day immediately preceding such RFR Interest Day; provided that if the Daily Simple RFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for purposes of this Agreement. “Daily Simple SOFR”means, for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day that is five (5) U.S. Government Securities Business Days prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website; provided that if the Daily Simple RFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for purposes of this Agreement. Any change in 27
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Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower. “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, 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 assigned to such term in Section 2.05(b)(vii). “Deemed Dividend Problem” means, with respect to any CFC, such CFC’s current and accumulated and undistributed earnings and profits (other than earnings and profits described in Sections 959(c)(1) and 959(c)(2) of the Code) being deemed to be repatriated to the Borrower or the applicable Domestic Subsidiary of the Borrower under Section 956 of the Code and the United States Treasury Regulations promulgated thereunder and the effect of such deemed repatriation causing adverse tax consequences to the Borrower or the applicable Domestic Subsidiary of the Borrower in each case as determined by the Borrower in its commercially reasonable judgment acting in good faith and in consultation with the Administrative Agent. “Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default. “Default Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (x) with respect to principal, interest or other fees attributable to a Facility, (i) in the case of Loans denominated in an Alternative Currency, the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2.0% and (ii) in the case of Loans denominated in U.S. Dollars, the Base Rate plus the Applicable Rate applicable to Base Rate Loans under such Facility plus 2% per annum and (y) with respect to all other Obligations, (i) the Base Rate plus (ii) the Applicable Rate applicable to Base Rate Loans under the Original2025 Revolving Credit Facility plus (iii) 2% per annum, in each case to the fullest extent permitted by applicable Laws, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum. “Defaulting Lender” means, subject to Section 2.16(b), any Lender that, as determined by the Administrative Agent, (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of Letters of Credit, within three Business Days of the date required to be funded by it hereunder, unless, with respect to funding obligations in respect of Loans, such Lender notifies the Administrative Agent and the Borrower 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, (b) has provided written notice to the Borrower and the Administrative Agent that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder (unless such written notice or public statement relates to such Lenders’ obligation to fund a Loan hereunder and states that such position is based on such 28
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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 request by the Administrative Agent made in good faith belief that such Lender may not honor its funding obligations, to confirm in a manner reasonably satisfactory to the Administrative Agent that it will comply with its 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 Administrative Agent) 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 a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment or (iv) 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 judgements or writs of attachment on its assets or permits such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. “Designated Non-Cash Consideration” means the fair market value (as determined by the Borrower in good faith) of non-cash consideration received by the Borrower or a Restricted Subsidiary in connection with a Disposition pursuant to Section 7.05(j) that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower setting forth the basis of such valuation (which amount will be reduced by the amount of cash or Cash Equivalents received in connection with a subsequent sale or conversion of such Designated Non-Cash Consideration to cash or Cash Equivalents). “Disposition” or “Dispose” means the sale, consignment, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including (x) any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith and (y) any issuance of Equity Interests by any Restricted Subsidiary of such Person. For the avoidance of doubt, any issuance of Equity Interests by the Borrower shall not be a Disposition. “Disqualified Equity Interests” means any Equity Interests that, by their terms (or by the terms of any security or other Equity Interest into which they are convertible or for which they are exchangeable) or upon the happening of any event or condition, (a) mature or are mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control 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), (b) are redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests) (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change 29
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of control 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), in whole or in part, (c) provide for the mandatory scheduled payment of distributions or dividends in cash or (d) are or become 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 Latest Maturity Date in effect at the time of issuance of such Equity Interests; provided, however, that only the portion of Equity Interests which so mature or are mandatorily redeemable, are redeemable at the option of the holder thereof, provide for the mandatory scheduled prepayment of distributions or dividends, or which are or become convertible as described above prior to the date that is 91 days after the Latest Maturity Date shall be deemed to be Disqualified Equity Interests; and provided further, however, that if such Equity Interests are issued pursuant to a plan for the benefit of the employees of the Borrower or its Restricted Subsidiaries, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by the Borrower or its Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations. “Disqualified Lender” means (a) any Person (or its Subsidiaries and Affiliates) who is an operating competitor of the Borrower or its Subsidiaries and that is separately identified by the Borrower to the Administrative Agent by name in writing prior to the Closing Date (which list of operating competitors may be supplemented by the Borrower after the Closing Date by means of a written notice to the Administrative Agent; provided that such supplementation shall not apply retroactively to disqualify any Persons that have previously acquired an assignment or participation in the Loans or Commitments hereunder) or become effective until five (5) Business Days after such written notice is delivered to the Administrative Agent. and (b) with respect to each Person that is a “Disqualified Lender” pursuant to clause (a) above, any of its Affiliates (other than any Affiliate of a Person that is a “Disqualified Lender” pursuant to clause (a) above and is a bona fide debt fund or an investment vehicle that is primarily engaged in making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of its business (and for purposes hereof, a “vulture fund” or Person that purchases distressed debt in the ordinary course of its business shall be deemed not to be a bona fide debt fund or an investment vehicle that is primarily engaged in making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of its business)) that is either (i) identified to the Administrative Agent by name in writing by the Borrower from time to time (provided that such supplementation shall not apply retroactively to disqualify any Persons that have previously acquired an assignment or participation in the Loans hereunder) or (ii) clearly identifiable as an Affiliate of such Disqualified Lender solely on the basis of such Affiliate’s name. “Disregarded Domestic Subsidiary” means any Domestic Subsidiary (a) substantially all of the assets of which consist of the Equity Interests of one or more CFCs or (b) that is treated as a disregarded entity for U.S. federal income tax purposes that holds, directly or indirectly, the Equity Interests of one or more CFCs. “Domestic Subsidiary” means any Restricted Subsidiary organized in the United States or any political subdivision thereof but excluding any direct or indirect Subsidiary of a CFC. 30
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“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 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. “Effective Yield” means, as to any Loans of any Class, the effective yield on such Loans, taking into account the applicable interest rate margins, any interest rate floors or similar devices and all fees, including upfront or similar fees or original issue discount (amortized over the shorter of (x) the original stated life of such Loans and (y) the four years following the date of incurrence thereof) payable generally to Lenders making such Loans, but excluding arrangement fees, structuring fees, administrative or agency fees, commitment fees, underwriting fees or other fees payable to any lead arranger (or its affiliates) (regardless of whether paid in whole or in part to any or all Lenders) in connection with the commitment or syndication of such Indebtedness. “Eligible Assignee” means any Person that meets the requirements to be an assignee under Sections 10.06(b)(v) and (vi) (subject to such consents, if any, as may be required under Section 10.06(b)(iii)). “Employee Matters Agreement” means that certain Amended and Restated Employee Matters Agreement by and among Post, the Borrower, Old BRBR, and BellRing Brands, LLC, dated as of March 10, 2022, as amended, modified, supplemented, restated or replaced from time to time. “Engagement Letter” means the Engagement Letter, dated November 29, 2021, among the Borrower and certain Arrangers, as amended, modified, supplemented, restated or replaced from time to time. “Environmental Claim” means any written notice, claim, demand, action, litigation, toxic tort, proceeding, demand, request for information, complaint, citation, summons, investigation, notice of non-compliance or violation, cause of action, consent order, consent decree, investigation, or other proceeding by any Governmental Authority or any other Person, arising out of, based on or pursuant to any Environmental Law or related in any way to any actual, alleged or threatened Environmental Liability. “Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, agreements or governmental restrictions relating to human health and safety, pollution, the protection of the environment or 31
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the release of any materials into the environment, including those related to hazardous materials, substances or wastes and air and water emissions and discharges. “Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), obligation, responsibility or cost directly or indirectly resulting from or based upon (a) any violation of, or liability under, any Environmental Law, (b) the generation, use, handling, transportation, storage, distribution, 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, (e) natural resource damage or (f) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing. “Environmental Permit” means any permit, approval, identification number, license or other authorization issued pursuant to or required under any Environmental Law. “Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination. “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder. “ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (or Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code). “ERISA Event” means the occurrence of any of the following (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a substantial employer (as defined in Section 4001(a) (2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification concerning the imposition upon the Borrower or any of its ERISA Affiliates of any liability with respect to such withdrawal, or a determination that a Multiemployer Plan is or is expected to be insolvent within the meaning of Title IV of ERISA; (d) the filing of a notice of intent to terminate, or the treatment of a Pension Plan amendment as a termination of, any Pension Plan, under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 32
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4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that the adjusted funding target attainment percentage (as defined in Section 436(j)(2) of the Code) of any Pension Plan is both less than 80% and such Pension Plan is more than $20,000,000 underfunded on an adjusted funding target attainment percentage basis; (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate; or (i) the failure to satisfy the Pension Funding Rules with respect to any Pension Plan, whether or not waived. “Escrow Subsidiary” means a wholly-owned Subsidiary (i) created by the Borrower or any Subsidiary for the sole purpose of issuing debt securities the net proceeds of which must be deposited into a secured escrow account of such Subsidiary pending consummation of a Permitted Acquisition and which debt securities must be redeemed if such Permitted Acquisition is not consummated, (ii) engaged in no activities other than those incidental to the issuance of such debt securities, (iii) owning no assets other than amounts that have been deposited into such secured escrow account and (iv) which has been designated as an Escrow Subsidiary by the Borrower’s Board of Directors as evidenced by a filing with the Administrative Agent of (1) a board resolution of the Borrower giving effect to such designation and (2) an officers’ certificate certifying that such designation, and the transactions in which such Subsidiary will engage (including the terms of the debt securities issued by such Subsidiary), comply with the requirements of this definition; provided that if at any time (x) such Subsidiary ceases to comply with the requirements of this definition or (y) the debt securities become guaranteed by (or secured by assets of) any Person other than such Subsidiary, such designated Subsidiary shall no longer constitute an Escrow Subsidiary under this Agreement. “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 “€” means the single currency of any member state of the European Union that adopts or has adopted the Euro as its lawful currency in accordance with the legislation of the European Union relating to economic and monetary union. “Eurodollar Rate” means, with respect to any Term Benchmark Borrowing denominated in Euros and for any Interest Period, the EURIBOR Screen Rate, two TARGET Days prior to the commencement of such Interest Period . “EURIBOR Screen Rate” means the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed (before any correction, recalculation or republication by the administrator) on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters as published at approximately 11:00 a.m. Brussels time two TARGET Days prior to the commencement of such Interest Period. If such page or service ceases to be available, the 33
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Administrative Agent may specify another page or service displaying the relevant rate after consultation with the Borrower. “Eurodollar Rate Loan” means a Revolving Credit Loan or a Term Loan that bears interest at a rate based on the definition of “Eurodollar Rate.” “Event of Default” has the meaning specified in Section 8.01. “Exchange Act” means the Securities Exchange Act of 1934, as amended. “Excluded Assets” has the meaning specified in the Collateral Agreement. “Excluded Subsidiary” means (a) any Affected Foreign Subsidiary, or any direct or indirect Subsidiary of any Affected Foreign Subsidiary, (b) any Receivables Subsidiary, (c) any Escrow Subsidiary, (d) any Unrestricted Subsidiary, (e) any Disregarded Domestic Subsidiary, (f) Active Nutrition International GmbH, or (g) any Restricted Subsidiary that is not a wholly owned Subsidiary and that constitutes a bona fide joint venture with a third party that is not an Affiliate of the Borrower, if, in the case of this clause (g), the granting of a security interest therein (i) would be prohibited by, cause a default under or result in a breach of, or would give another Person (other than the Borrower or any Restricted Subsidiary) a right to terminate, under any organizational document, shareholders, joint venture or similar agreement applicable to such Restricted Subsidiary that is not a wholly owned Subsidiary and that constitutes a bona fide joint venture with a third party that is not an Affiliate of the Borrower or (ii) would require obtaining the consent of any Person (other than the Borrower or any Restricted Subsidiary) unless such consent has been obtained; provided that the Borrower and its Restricted Subsidiaries shall not be required to obtain any such consents. “Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by overall net income (however denominated), franchise Taxes (in lieu of net income Taxes), and branch profits Taxes in each case, (i) imposed by the jurisdiction (or any political subdivision thereof) under the Laws of which such Recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, or (ii) that are Other Connection Taxes, (b) any backup withholding tax that is required by the Code to be withheld from amounts payable to a Lender that has failed to comply with clause (A) of Section 3.01(e) (ii), (c) in the case of a Lender (other than an assignee pursuant to a request by the Borrower under Section 10.13), any United States federal withholding Tax that (i) is required to be imposed on amounts payable to or for the account of such Lender pursuant to the Laws in force at the time such Lender acquires such interest in the Loan or Commitment (or designates a new Lending Office) or (ii) is attributable to such Lender’s failure or inability (other than as a result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii), except that in the case of a Lender that designates a new Lending Office or becomes a Party to this Agreement pursuant to an assignment, withholding Taxes shall not be Excluded Taxes to the extent that such Taxes were not Excluded Taxes with respect to such Lender or its assignor, as the case may be, immediately before such designation of a new Lending Office or assignment; and (d) any U.S. federal withholding Taxes imposed under FATCA. 34
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“Existing Credit Agreement” means that certain credit agreement dated October 21, 2019, by and among BellRing Brands, LLC, as the borrower, Credit Suisse AG, Cayman Islands Branch, as administrative agent and the lenders and issuing banks party thereto, (as amended, amended and restated, modified or supplemented from time to time prior to the date hereof) “Existing Credit Agreement” has the meaning specified in the preamble hereto. “Facility” means the Revolving Credit Facility, an Incremental Facility or a Refinancing Facility, as the context may require. “FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board. “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) and any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code. “Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as shall be set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Effective Rate as so determined would be less than 0%, such rate shall be deemed to be 0% for the purposes of this Agreement. “Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States of America. “Fee Letter” means the agency fee letter, dated November 29, 2021, among the Borrower and JPMorgan Chase Bank, N.A., as amended and restated as of the First Amendment Effective Date, and as further amended, restated, modified from time to time. “First Amendment” means the First Amendment to Credit Agreement, dated as of August 22, 2025, by and among the Borrower, the Guarantors party thereto, the Lenders party thereto and JPMorgan Chase Bank, N.A., as the Administrative Agent. “First Amendment Effective Date” means August 22, 2025. “Fiscal Year” means the fiscal year of the Borrower and its Restricted Subsidiaries ending on September 30 of each calendar year. “Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement 35
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or otherwise) with respect to the Adjusted Term SOFR Rate, Adjusted Eurodollar Rate, Adjusted Daily Simple SOFR, the Adjusted Daily Simple RFR or the Central Bank Rate, as applicable. For the avoidance of doubt the initial Floor with respect to the Original2025 Revolving Credit Loans for each of the Adjusted Term SOFR Rate, the Adjusted Eurodollar Rate, Adjusted Daily Simple SOFR, the Adjusted Daily Simple RFR and the Central Bank Rate shall be 0%. “Foreign Government Scheme or Arrangement” has the meaning specified in Section 5.11(c). “Foreign Lender” means a Lender that is not a U.S. Person. “Foreign Plan” has the meaning specified in Section 5.11(c). “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary. “Formation Documents” means the Employee Matters Agreement, the Legal Engagement Letter, the Master Services Agreement, the Master Transaction Agreement, the Registration Rights Agreement, the Tax Matters Agreement, the Tax Matters Agreement (2019), the Tax Receivable Agreement, the Trademark and Domain Name License Agreement and the Transaction Agreement. “FRB” means the Board of Governors of the Federal Reserve System of the United States. “Fronting Exposure” means, at any time there is a Defaulting Lender, with respect to any L/C Issuer, such Defaulting Lender’s Applicable Revolving Credit Percentage of the outstanding L/C Obligations in respect of Letters of Credit issued by such L/C Issuer other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof. “Fully Funded” has the meaning specified in Section 5.11(c). “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 as in effect from time to time. “Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, 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 the National Association of Insurance Commissioners and any supra-national bodies such as the European Union or the European Central Bank). 36
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“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning. “Guarantors” means, collectively, each existing and future direct or indirect Subsidiary of the Borrower (other than any Excluded Subsidiary or any Immaterial Subsidiary) that is a party (whether originally or by the execution of a joinder) to the Collateral Agreement. “Hazardous Materials” means all explosive or radioactive substances or wastes, contaminants, pollutants or any other hazardous or toxic substances, wastes or materials regulated under or defined in any Environmental Law, including petroleum, its derivatives or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, and infectious or medical wastes. “Hazardous Material Activity” means any past, current, proposed or threatened activity, event or occurrence involving any Hazardous Material, including the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Material, and any corrective action or response action with respect to any of the foregoing. “Hedge Bank” means any Person that, at the time it enters into a Swap Contract permitted hereunder, is a Lender, the Administrative Agent or an Arranger or an Affiliate of a 37
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Lender, the Administrative Agent or an Arranger in its capacity as a party to such Swap Contract. “Immaterial Subsidiary” means, as of any date, any Restricted Subsidiary that, (a) as of the last date of the most recent fiscal quarter of the Borrower for which financial statements have been delivered, accounts for less than 5.00% of the Consolidated Total Assets of the Borrower and its Restricted Subsidiaries and less than 5.00% of the total revenue of the Borrower and its Restricted Subsidiaries on a consolidated basis, in each case, as measured as of the last day of the most recent fiscal quarter of the Borrower for which financial statements have been delivered and (b) does not, directly or indirectly, hold Equity Interests in any Restricted Subsidiary that is not an Immaterial Subsidiary as of such date; provided that if, as of the last date of the most recent fiscal quarter of the Borrower for which financial statements have been delivered, the aggregate amount of Consolidated Total Assets or net sales attributable to all Restricted Subsidiaries that are Immaterial Subsidiaries exceeds 7.50% of the Consolidated Total Assets of the Borrower and its Restricted Subsidiaries or 7.50% of the total revenues of the Borrower and its Restricted Subsidiaries on a consolidated basis, then a sufficient number of Restricted Subsidiaries which are not Excluded Subsidiaries shall be designated by the Borrower (or, in the event the Borrower has failed to do so within twenty days, the Administrative Agent) to eliminate such excess, and such designated Restricted Subsidiaries shall no longer constitute Immaterial Subsidiaries under this Agreement. “Immediate Family Member” means with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, domestic partner, former domestic partner, sibling, mother-in-law, father-in-law, son-in-law and daughter-in-law (including adoptive relationships), any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals, such individual’s estate (or an executor or administrator, in each case, acting on their behalf) or any private foundation or fund that is controlled by any of the foregoing individuals or any donor- advised fund of which any such individual is the donor. “Increased Amount Date” has the meaning specified in Section 2.14(b). “Incremental Available Amount” means (a)(i) the greater of (x) $250,000,000500,000,000 and (y) 100.00% of the Consolidated EBITDA based on the Most Recent Financial Statements less (ii) the aggregate principal amount of Indebtedness incurred pursuant to Section 2.14(a) and Section 7.03(s) in reliance of this clause (a), plus (b)(i) the amount of any voluntary prepayments or debt buybacks of Term Loans, loans under any Incremental Equivalent Debt and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder (which, in the case of any such Indebtedness that constitutes revolving Indebtedness, is accompanied by a permanent reduction in the relevant commitment), (ii) voluntary prepayments of Revolving Credit Loans to the extent accompanied by a permanent reduction in the relevant commitment, and (iii) the amount paid in cash in respect of any reduction in the outstanding principal amount 38
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of any Term Loan resulting from any assignment of such Term Loan to the Borrower pursuant to Section 10.06(b) (vii) and/or the application of “yank-a-bank” provisions pursuant to Section 10.13, in each case, made prior to the Increased Amount Date (in the case of each of clauses (b)(i), (ii) and (iii), other than prepayments, repayments or commitment reductions financed with the proceeds of long-term indebtedness (other than revolving indebtedness (except where revolving indebtedness is used to replace revolving indebtedness))) less (iv) the aggregate principal amount of Indebtedness incurred pursuant to Section 2.14(a) and Section 7.03(s) in reliance on this clause (b), plus (c) an unlimited amount of Indebtedness that is secured by any or all of the Collateral on a basis that is pari passu with or junior to the Liens securing the Obligations or that is unsecured, so long as, after giving effect to the incurrence of such Incremental Equivalent Debt or such Incremental Facility (assuming all commitments under or in respect of the Revolving Credit Facility Increase, Incremental Term Loans or Incremental Equivalent Debt are fully funded and without netting the cash proceeds thereof), (i) in the case of any Indebtedness secured by any or all of the Collateral on a pari passu basis with the Liens securing the Obligations hereunder, the pro forma Secured Net Leverage Ratio would not exceed the greater of 3.50:1.00 and (in the case of Indebtedness incurred in connection with a Permitted Acquisition or other Investment in the nature of an acquisition) the Secured Net Leverage Ratio immediately prior to giving effect to such Permitted Acquisition or other Investment in the nature of an acquisition, (ii) in the case of any Indebtedness secured by any or all of the Collateral on a junior basis to the Liens securing the Obligations hereunder or secured by assets that do not constitute Collateral, the pro forma Secured Net Leverage Ratio would not exceed the greater of 4.25:1.00 and (in the case of Indebtedness incurred in connection with a Permitted Acquisition or other Investment in the nature of an acquisition) the Secured Net Leverage Ratio immediately prior to giving effect to such Permitted Acquisition or other Investment in the nature of an acquisition, and (iii) in the case of any Indebtedness that is unsecured, either (x) the pro forma Total Net Leverage Ratio would not exceed the greater of 6.00:1.00 and (in the case of Indebtedness incurred in connection with a Permitted Acquisition or other Investment in the nature of an acquisition) the Total Net Leverage Ratio immediately prior to giving effect to such Permitted Acquisition or other Investment in the nature of an acquisition or (y) the pro forma Consolidated Interest Coverage Ratio would be greater than or equal to the lesser of 2.00:1.00 and (in the case of Indebtedness incurred in connection with a Permitted Acquisition or other Investment in the nature of an acquisition) the Consolidated Interest Coverage Ratio immediately prior to giving effect to such Permitted Acquisition or other Investment in the nature of an acquisition, provided, that to the extent the proceeds of any Incremental Term Loans or Incremental Equivalent Debt are intended to be applied to finance a Limited Condition Acquisition, pro forma compliance shall be tested in accordance with Section 1.09(c); and provided, further that, at the election of the Borrower, (I) the Borrower shall be deemed to have used amounts under clause (c) (to the extent compliant therewith) prior to utilization of amounts under clause (a) or (b), (II) Loans may be incurred simultaneously under clauses (a), (b) and (c), and proceeds from any such incurrence may be utilized in a single transaction, at the election of the Borrower, by first calculating the incurrence under clause (c) above and then 39
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calculating the incurrence under clauses (a) and (b) above and (III) any Loans incurred in reliance on clause (a) and/or (b) may be reclassified, as the Borrower may elect from time to time, as incurred under clause (c) to the extent permitted thereunder at such time on a pro forma basis. “Incremental Borrowing” means a borrowing of Incremental Revolving Loans or Incremental Term Loans, as the context requires. “Incremental Equivalent Debt” has the meaning specified in Section 7.03(s). “Incremental Facility” means, at any time, as the context may require, the aggregate amount of the Incremental Revolving Loan Lenders’ Incremental Revolving Credit Commitments and/or the Incremental Term Loan Lenders’ Incremental Term Loan Commitments of a given Class at such time and, in each case, but without duplication, the Credit Extensions made thereunder. “Incremental Revolving Credit Commitments” has the meaning specified in Section 2.14(a). “Incremental Revolving Loan Lender” has the meaning specified in Section 2.14(b). “Incremental Revolving Loans” has the meaning specified in Section 2.14(e). “Incremental Term Loan Commitments” has the meaning specified in Section 2.14(a). “Incremental Term Loan Lender” has the meaning specified in Section 2.14(b). “Incremental Term Loan Maturity Date” means the date on which Incremental Term Loans of a Class shall become due and payable in full hereunder, as specified in the applicable Joinder Agreement, including by acceleration or otherwise. “Incremental Term Loans” has the meaning specified in Section 2.14(f). “Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP: (a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) the maximum amount of all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments; (c) net obligations of such Person under any Swap Contract; 40
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(d) all obligations of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts payable in the ordinary course of business and not past due for more than 60 days after the date on which such trade account is due (unless being contested in good faith and by appropriate proceedings) and (ii) earn-outs, hold-backs and other deferred payment of consideration in Permitted Acquisitions to the extent not required to be reflected as liabilities on the balance sheet of the Borrower and its Restricted Subsidiaries in accordance with GAAP); (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse; (f) Capital Leases; (g) all obligations of such Person in respect of Disqualified Equity Interests valued, in the case of a redeemable preferred interest that is a Disqualified Equity Interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid distributions or dividends; and (h) all Guarantees of such Person in respect of any of the foregoing. For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any Capital Lease as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. Notwithstanding the foregoing, in connection with the purchase or sale by the Borrower or its Restricted Subsidiaries of any assets or business, the term “Indebtedness” will exclude amounts owed to dissenting shareholders (including in connection with, or as a result of, exercise of dissenters’ or appraisal rights and the settlement of any claims or action (whether actual, contingent or potential)), pursuant to or in connection with a consolidation, amalgamation, merger or transfer of assets not prohibited by the applicable provisions of this Agreement. “Indemnified Liabilities” has the meaning specified in Section 10.04(b). “Indemnified Taxes” means (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 clause (a), Other Taxes. “Indemnitee” has the meaning specified in Section 10.04(b). “Information” means all information received from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective businesses other than any 41
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such information that is available to the Administrative Agent, any Lender or any L/C Issuer on a non-confidential basis prior to disclosure by the Borrower or any Subsidiary. “Interest Election Request” means a request by the Borrower to convert or continue a Revolving Borrowing in accordance with Section 2.02, which shall be substantially in the form of Exhibit C or any other form approved by the Administrative Agent. “Interest Payment Date” means (a) with respect to any Base Rate Loan, (i) the last day of each March, June, September and December and (ii) the Maturity Date of the Facility under which such Loan was made, (b) with respect to any RFR Loan, (i) each date that is on the numerically corresponding day in each calendar month that is one month after the Borrowing of such Loan (or, if there is no such numerically corresponding day in such month, then the last day of such month) and (ii) the Maturity Date of the Facility under which such Loan was made, and (c) with respect to any Term SOFR Loan or any Eurodollar Rate Loans, (i) the last day of each Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Term Benchmark 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 (ii) the Maturity Date of the Facility under which such Loan was made. “Interest Period” means with respect to any Term Benchmark 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 thereafter, as the Borrower may elect; provided, that (a) 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, (b) 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, (c) no tenor that has been removed from this definition pursuant to Section 3.08 shall be available for specification in such Request for Credit Extension or Interest Election Request and (d) no Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and, thereafter, shall be the effective date of the most recent conversion or continuation of such Borrowing. “Interest Rate Determination Date” means, with respect to any Interest Period in respect of Eurodollar Rate Loans, the date that is two Business Days prior to the first day of such Interest Period. “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 of another Person, (b) the purchase or other acquisition of assets of another Person if such assets constitute a business, division or operating unit (other than purchases or other acquisitions of inventory, materials, supplies and/or equipment in the ordinary course of business), (c) a loan, 42
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advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or interest in, another Person, or (d) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment. “IP Rights” has the meaning specified in Section 5.16. “IRS” means the United States Internal Revenue Service. “ISP” means, with respect to any Letter of Credit, the International Standby Practices, International Chamber of Commerce Publication No. 590. “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application and any other document, agreement or instrument entered into by the applicable L/C Issuer and the Borrower (or any Restricted Subsidiary) or in favor of such L/C Issuer relating to such Letter of Credit. “Joinder Agreement” means an agreement substantially in the form of Exhibit F. “Judgment Currency” has the meaning specified in Section 10.20. “Junior Lien Intercreditor Agreement” means an intercreditor agreement among the Administrative Agent and the other parties from time to time party thereto, substantially in the form of Exhibit J. “L/C Advance” means, with respect to each Revolving Credit Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Revolving Credit Percentage. “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing. “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 Issuer” means (a) with respect to Letters of Credit (other than any Bank Guarantee) issued hereunder on or after the ClosingFirst Amendment Effective Date, (i) JPMorgan Chase Bank, N.A., (ii) any other Revolving Credit Lender that may become and agrees to become an L/C Issuer pursuant to Section 2.03(l), (iii) any successor issuer of Letters of Credit hereunder or (iv) collectively, all of the foregoing, in each case, in their respective capacities as an issuer thereof and (b) with respect to Bank Guarantees, any Bank Guarantee Issuer. It is understood and agreed that each L/C Issuer’s and its respective Affiliates’ share of the Letter of Credit Sublimit shall not exceed the amount set forth opposite such L/C Issuer’s name on Schedule 2.01 (as such Schedule may be amended with the consent of each affected L/C Issuer and the 43
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Borrower from time to time) under the caption “Letter of Credit Commitments” and no L/C Issuer shall be required to issue Letters of Credit in excess of its applicable amount so set forth; provided that it is understood and agreed that each L/C Issuer may, in its sole discretion, make L/C Credit Extensions in an aggregate amount above its respective share of the Letter of Credit Sublimit. “L/C Obligations” means, as at any date of determination, (i) the aggregate amount available to be drawn under all outstanding Letters of Credit plus (ii) the aggregate of all Unreimbursed Amounts, including all L/C Borrowings, in each case, using the U.S. Dollar Equivalent of amounts denominated in an Alternative Currency. 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 1.06. For all purposes of this 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. “Latest Maturity Date” means, at any date of determination, the latest Maturity Date applicable to any Loan or Commitment hereunder at such time, including the latest maturity date of any Refinancing Term Loan, any Refinancing Term Commitment, any Incremental Term Loans, any Incremental Revolving Credit Commitments or any Other Revolving Commitments, in each case as extended in accordance with this Agreement from time to time. “Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law. “LCA Election” means the Borrower’s election to treat a specified Investment that is an acquisition or in the nature of an acquisition (including a Permitted Acquisition) as a Limited Condition Acquisition by giving written notice of such election to the Administrative Agent at any time prior to the closing of such Limited Condition Acquisition. “LCA Test Date” has the meaning specified in Section 1.09(c). “Legal Engagement Letter” means that certain legal engagement letter dated as of March 10, 2022 by and between Post and the Borrower, as amended, modified, supplemented, restated or replaced from time to time. “Lender” has the meaning specified in the introductory paragraph hereto. “Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent, which office 44
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may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. “Letter of Credit” means any standby letter of credit or any Bank Guarantee issued hereunder. “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 L/C Issuer. “Letter of Credit Expiration Date” means the day that is seven days prior to the Maturity Date then in effect for the applicable Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day). “Letter of Credit Fee” has the meaning specified in Section 2.03(h). “Letter of Credit Sublimit” means an amount equal to $20,000,000; provided that, for the avoidance of doubt, each Issuing Bank may, in its sole discretion, issue letters of credit in an aggregate amount above its respective share of the letter of credit sublimit. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facilities. “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing). “Limited Condition Acquisition” means any Permitted Acquisition, or other Investment in the nature of an acquisition, by the Borrower or one or more of its Restricted Subsidiaries whose consummation is not, by the terms of the applicable purchase, sale, joint venture, merger or any other definitive agreement with respect to such Permitted Acquisition or other Investment, conditioned on the availability of, or on obtaining, third party financing. “Loan” means an extension of credit by a Lender to the Borrower hereunder in the form of a Term Loan or a Revolving Credit Loan. “Loan Documents” means this Agreement, the First Amendment, each Note, each Issuer Document, the Collateral Documents, the Pari Passu Intercreditor Agreement, the Junior Lien Intercreditor Agreement, the Fee Letter, each agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.15 of this Agreement, any Refinancing Amendment, any Joinder Agreement and any other agreement or instrument designated as a “Loan Document” by its terms. “Loan Parties” means, collectively, the Borrower and each Guarantor. 45
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“Market Capitalization” means an amount equal to (a) the total number of issued and outstanding shares of the Borrower’s Common Stock that are issued and outstanding on the date of the relevant Restricted Payment and listed on The New York Stock Exchange (or, if the primary listing of such Common Stock is on another exchange, on such other exchange) multiplied by (b) the arithmetic mean of the closing price per share of such Common Stock as reported by The New York Stock Exchange (or, if the primary listing of such Common Stock is on another exchange, on such other exchange) for each of the 30 consecutive trading days immediately preceding the date of such Restricted Payment. “Master Services Agreement” means that certain Amended and Restated Master Services Agreement dated as of March 10, 2022 by and among Post, Borrower and certain Subsidiaries of the Borrower, as amended, modified, supplemented, restated or replaced from time to time. “Master Transaction Agreement” means that certain Master Transaction Agreement dated as of October 7, 2019 by and among Post, BellRing Brands, LLC and Old BRBR, as amended, modified, supplemented, restated or replaced from time to time. “Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the results of operations, business, properties, liabilities (actual or contingent) or financial condition of the Borrower and its Restricted Subsidiaries taken as a whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Document; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party. “Maturity Date” means, (i) with respect to the Original2025 Revolving Credit Commitments and any subsequent additions thereto, March 10, 2027August 22, 2030 (the “Scheduled Revolving Facility Maturity Date”); provided that, if on December 14, 2029 (the “Springing Maturity Date”), the Senior Notes have not been redeemed in full in cash or refinanced and replaced in full with notes and/or loans maturing at least 91 days after the Scheduled Revolving Facility Maturity Date, then the Maturity Date for the 2025 Revolving Credit Facility shall at such time become the Springing Maturity Date, (ii) with respect to any Refinancing Term Loans or Other Revolving Commitments, the final maturity date applicable thereto as specified in the applicable Refinancing Amendment and (iii) with respect to any Incremental Term Loans, the final maturity date applicable thereto as specified in the applicable Joinder Agreement; provided, in each case, that if such date is not a Business Day, then the applicable Maturity Date shall be the next preceding Business Day. “Maximum Rate” has the meaning specified in Section 10.09. “Measurement Period” means, at any date of determination, the most recently completed four fiscal quarters of the Borrower for which financial statements are available (other than for purposes of calculating ratios pursuant to Section 7.11, which shall look to the most recently completed four fiscal quarters of the Borrower). “Merger Sub” means BellRing Merger Sub Corporation, a Delaware corporation. 46
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“MNPI” has the meaning specified in Section 6.02. “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto. “Most Recent Financial Statements” means the most recently delivered financial statements required to be delivered pursuant to Section 6.01(a) or Section 6.01(b) of this Agreement (or, until such time as such financial statements are so required to be delivered, the financial statements for the period ended December 31, 2021). “Multiemployer Plan” means an employee benefit plan defined in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years has made or been obligated to make contributions. “Multiple Employer Plan” means a plan which has two or more contributing sponsors (including the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA. “Non-Guarantor Debt” means Indebtedness incurred, created or assumed by Restricted Subsidiaries that are not Loan Parties. “Non-Guarantor Debt Cap” means an amount equal to the greater of (x) $150,000,000300,000,000 and (y) 60% of Consolidated EBITDA based on the Most Recent Financial Statements. “Non-Recourse Debt” means Indebtedness: (i) as to which neither the Borrower nor any of its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), or (b) is directly or indirectly liable as a guarantor or otherwise; (j) default with respect to which (including any rights that the holders thereof may have to take enforcement action against an Unrestricted Subsidiary) would not permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Obligations) of the Borrower or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity; and (k) as to which the lenders have been notified in writing that they will not have any recourse to the stock or assets of the Borrower or any of its Restricted Subsidiaries. “Note” means a promissory note made by the Borrower (x) in favor of a Revolving Credit Lender evidencing Revolving Credit Loans made by such Revolving Credit Lender, substantially in the form of Exhibit C- 1 or (y) in favor of an Incremental Term Loan Lender 47
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evidencing Incremental Term Loans made by such Incremental Term Loan Lender, substantially in the form of Exhibit C-2. “NYFRB” means the Federal Reserve Bank of New York. “NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source. “NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined is less than 0%, such rate shall be deemed to be 0% for purposes of this Agreement. “Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, Letter of Credit, Secured Cash Management Agreement or Secured Hedge Agreement, in each case, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Notwithstanding the foregoing, Obligations of any Guarantor shall in no event include any Excluded Swap Obligations (as defined in the Collateral Agreement) of such Guarantor. “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control. “Offer Loans” has the meaning specified in Section 10.06(b)(vii)(A). “Old BRBR” means, prior to the Old BRBR Merger, BellRing Brands, Inc., a Delaware corporation and, upon the Old BRBR Merger, BellRing Intermediate Holdings, Inc., a Delaware corporation, formerly known as BellRing Brands, Inc., a Delaware corporation. “Old BRBR Merger” means, in accordance with the terms set forth in the Transaction Agreement, the merger of Old BRBR with and into Merger Sub with Old BRBR as the surviving corporation. “Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, 48
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instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity. “Original Revolving Credit Commitment” means, as to each Revolving Credit Lender, its commitment in effect as of the Closing Date to make Original Revolving Credit Loans to the Borrower pursuant to Section 2.01 in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 underto the caption “Original RevolvingExisting Credit Commitment” or opposite such captionAgreement as of the Closing Date or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. As of the Closing Date, the aggregate amount of the Original Revolving Credit Commitments of all Revolving Credit Lenders iswas $250,000,000. On the First Amendment Effective Date, the Original Revolving Credit Commitments were refinanced in full by the 2025 Refinancing Revolving Credit Commitments. “Original Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving Credit Lenders’ Original Revolving Credit Commitments at such time and the Credit Extensions made thereunder. On the First Amendment Effective Date, the Original Revolving Credit Facility was refinanced in full by the 2025 Revolving Credit Facility. “Original Revolving Credit Loan” means the Revolving Credit Loans made by the Revolving Credit Lenders to the Borrower under the Original Revolving Credit Commitments pursuant to Section 2.01. On the First Amendment Effective Date, the Original Revolving Credit Loans were repaid in full. “Other Connection Taxes” means, with respect to any Recipient, 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 one or more of the following: 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, Letter of Credit or Loan Document). “Other Revolving Commitments” means one or more Classes of revolving commitments hereunder that result from a Refinancing Amendment. “Other Revolving Loans” means one or more Classes of revolving credit loans made pursuant to Other Revolving Commitments that result from a Refinancing Amendment. “Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing, mortgage or mortgage recording Taxes, any other excise or property Taxes, or similar Taxes arising from any payment made hereunder or under any other Loan Document or from the execution, delivery, performance, or enforcement or registration of, from the receipt or 49
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perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document. “Outstanding Amount” means (a) with respect to Term Loans and Revolving Credit Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans and Revolving Credit Loans, as the case may be, occurring on such date and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations 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 Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts, in each case, using the U.S. Dollar Equivalent of obligations denominated in an Alternative Currency. “Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight eurodollar transactions denominated in U.S. Dollars by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate. “Parent Company” means any Person of which the Borrower is a direct or indirect wholly-owned Subsidiary. “Pari Passu Intercreditor Agreement” means an intercreditor agreement among the Administrative Agent and the other parties from time to time party thereto, substantially in the form of Exhibit I. “Participant” has the meaning specified in Section 10.06(d). “Participant Register” has the meaning specified in Section 10.06(d). “Participating Member State” means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union. “Payment” has the meaning specified in Section 9.13(a). “Payment Notice” has the meaning specified in Section 9.13(b). “PBGC” means the Pension Benefit Guaranty Corporation. “Pension Act” means the Pension Protection Act of 2006. “Pension Funding Rules” means the rules of the Code and ERISA regarding minimum funding standards and required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the 50
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Pension Act and, thereafter, Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA. “Pension Plan” means any employee pension benefit plan (including, but not limited to, Multiple Employer Plans, Multiemployer Plans, defined benefit plans or defined contribution plans) that is maintained or is contributed to, or during the preceding five plan years has been maintained or contributed to, by the Borrower and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the Pension Funding Rules. “Periodic Term SOFR Determination Day” has the meaning assigned to such term in the definition of “Term SOFR”. “Permitted Acquisition” means any investment by the Borrower or any Restricted Subsidiary in the form of acquisitions of all or substantially all of the business or a line of business or a separate operation (whether by the acquisition of capital stock, assets or any combination thereof) of any other Person if: (l) the acquired entity, assets or operations shall be in the Permitted Business; (m) the aggregate amount of acquisitions made by the Borrower and its Restricted Subsidiaries in Persons that do not become Loan Parties as a result of any such acquisition and all other Permitted Acquisitions closed on or after the Closing Date shall not exceed the greater of (i) $100,000,000200,000,000 and (ii) 40% of the Consolidated EBITDA based on the Most Recent Financial Statements after giving effect to all acquisitions whether closed prior to, on or after the Closing Date, but prior to giving effect to the proposed acquisition; and (n) no Event of Default under Sections 8.01(a), 8.01(f) or 8.01(g) shall have occurred and be continuing. “Permitted Business” means the growing, packaging, manufacturing, processing, licensing, distribution and/or sale of any product that is ingestible by a natural person or the provision of any service with respect thereto or a line of business reasonably related, complementary, synergistic or ancillary thereto or reasonable extensions thereof. “Permitted Liens” means those Liens permitted pursuant to Section 7.01. “Permitted Prior Liens” has the meaning specified in Section 5.18. “Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, renewal or extension of any 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 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 or extension and by an amount equal to 51
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any existing commitments unutilized thereunder (and, for the avoidance of doubt, if such principal amount (or accreted value, if applicable) is exceeded, such excess amount is otherwise permitted to be incurred hereunder), (b) such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and 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 or extended, (c) at the time thereof, no Event of Default under Sections 8.01(a), 8.01(f) or 8.01(g) shall have occurred and be continuing, (d) if such Indebtedness being modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed or extended, (e) if such Indebtedness being modified, refinanced, refunded, renewed or extended is secured, the terms and conditions relating to collateral of any such modified, refinanced, refunded, renewed or extended indebtedness, taken as a whole, are not materially less favorable to the Loan Parties or the Lenders than the terms and conditions with respect to the collateral for the Indebtedness being modified, refinanced, refunded, renewed or extended, taken as a whole, and the Liens on any Collateral securing any such modified, refinanced, refunded, renewed or extended Indebtedness shall have the same (or lesser) priority relative to the Liens on the Collateral securing the Obligations and, if secured by the Collateral, the holders of such Indebtedness or a representative thereof shall be or become a party to a Pari Passu Intercreditor Agreement and the Junior Lien Intercreditor Agreement (if such Indebtedness is secured by any or all of the Collateral on a pari passu basis (without regard to control of remedies) with the Obligations) or to the Junior Lien Intercreditor Agreement (if such Indebtedness is secured by any or all of the Collateral on a junior basis (without regard to the control of remedies) with the Obligations), (f) the terms and conditions (excluding as to collateral, subordination, interest rate and redemption premium) of any such modified, refinanced, refunded, renewed or extended Indebtedness, taken as a whole, shall not be materially less favorable to the Loan Parties than the Indebtedness being modified, refinanced, refunded, renewed or extended, taken as a whole, (g) if such Indebtedness being modified, refinanced, refunded, renewed or extended was unsecured, such modification, refinancing, refunding, renewal or extension shall also be unsecured and (h) such modification, refinancing, refunding, renewal or extension is incurred by one or more Persons who is an obligor of the Indebtedness being modified, refinanced, refunded, renewed or extended. “Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity. “Platform” has the meaning specified in Section 6.02. “Post” means Post Holdings, Inc., a Missouri corporation, and its successors and assigns. “Prepayment Notice” means a notice of the optional prepayment of Revolving Credit Loans or Term Loans pursuant to Section 2.05(a), which shall be substantially in the form of Exhibit A-3. 52
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“Prime Rate” means the rate last quoted by The Wall Street Journal as the “Prime Rate” in the United States or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as reasonably determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as reasonably determined by the Administrative Agent). “Pro Rata Obligations” means the Loans and the Letters of Credit. “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 Lender” has the meaning specified in Section 6.02. “Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests. “Qualified Proceeds” means assets that are used or useful in, or Equity Interests of any Person engaged in, a Permitted Business. “Qualified Receivables Transaction” means any transaction or series of transactions that may be entered into by the Borrower or any Restricted Subsidiary pursuant to which the Borrower or any such Restricted Subsidiary may sell, convey or otherwise transfer to a Receivables Subsidiary (in the case of a transfer by the Borrower or any Restricted Subsidiary) or to any Special Purpose Vehicle (in the case of a transfer by a Receivables Subsidiary), or may grant a security interest in, any Receivables Program Assets (whether existing on the Closing Date or arising thereafter); provided that: (1) no portion of the Indebtedness or any other obligations (contingent or otherwise) of a Receivables Subsidiary or Special Purpose Vehicle (a) is Guaranteed by the Borrower or any Restricted Subsidiary (other than a Receivables Subsidiary), excluding Guarantees of obligations pursuant to Standard Securitization Undertakings, (b) is recourse to or obligates the Borrower or any Restricted Subsidiary (other than a Receivables Subsidiary) in any way other than pursuant to Standard Securitization Undertakings, or (c) subjects any property or asset of the Borrower or any Restricted Subsidiary (other than a Receivables Subsidiary), directly or indirectly, contingently or otherwise, to the satisfaction of obligations incurred in such transactions, other than pursuant to Standard Securitization Undertakings; (2) neither the Borrower nor any Restricted Subsidiary (other than a Receivables Subsidiary) has any material contract, agreement, arrangement or understanding with a Receivables Subsidiary or a Special Purpose Vehicle other than on terms no less favorable to the Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Borrower, other than fees payable in the ordinary course of business in connection with servicing accounts receivable and Standard Securitization Undertakings; and (3) the Borrower and its Restricted Subsidiaries (other than a Receivables Subsidiary) do not have any obligation to maintain or preserve the financial condition of a Receivables Subsidiary or a Special Purpose Vehicle or cause such entity to achieve certain levels of operating results other than Standard Securitization Undertakings. 53
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“Quarterly Financial Statements” has the meaning specified in Section 6.01(b). “Ratio Calculation Date” has the meaning specified in Section 1.09(b)(i). “Receivables” means all rights of the Borrower or any of its Restricted Subsidiaries (other than a Receivables Subsidiary) to payments (whether constituting accounts, chattel paper, instruments, general intangibles or otherwise, and including the right to payment of any interest or finance charges), which rights are identified in the accounting records of the Borrower or such Restricted Subsidiary as accounts receivable. “Receivables Documents” means: (1) one or more receivables purchase agreements, pooling and servicing agreements, credit agreements, agreements to acquire undivided interests or other agreements to transfer or obtain loans or advances against, or create a security interest in, Receivables Program Assets, in each case as amended, modified, supplemented, restated or replaced from time to time and entered into by the Borrower, a Restricted Subsidiary and/or a Receivables Subsidiary, and (2) each other instrument, agreement and other document entered into by the Borrower, a Restricted Subsidiary or a Receivables Subsidiary relating to the transactions contemplated by the agreements referred to in clause (1) above. “Receivables Fees” means distributions or payments made directly or by means of discounts with respect to any accounts receivable or participation interest therein issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Qualified Receivables Transaction. “Receivables Program Assets” means: (1) all Receivables which are described as being transferred by the Borrower, a Restricted Subsidiary or a Receivables Subsidiary pursuant to the Receivables Documents; (2) all Receivables Related Assets in respect of Receivables described in clause (1); and (3) all collections (including recoveries) and other proceeds of the assets described in the foregoing clauses. “Receivables Program Obligations” means Indebtedness and other obligations owing in respect of notes, trust certificates, undivided interests, partnership interests or other interests sold, issued and/or pledged, or otherwise incurred, in connection with a Qualified Receivables Transaction, and related obligations of the Borrower, a Restricted Subsidiary or a Special Purpose Vehicle (including, without limitation, Standard Securitization Undertakings). “Receivables Related Assets” means: (1) any rights arising under the documentation governing or relating to Receivables (including rights in respect of Liens securing such Receivables and other credit support in respect of such Receivables); (2) any proceeds of such Receivables and any lockboxes or accounts in which such proceeds are deposited; (3) spread accounts and other similar accounts (and any amounts on deposit therein) established in connection with a Qualified Receivables Transaction; (4) any warranty, indemnity, dilution and other intercompany claim arising out of Receivables Documents; and (5) other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable. 54
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“Receivables Repurchase Obligation” means any obligation of the Borrower or a Restricted Subsidiary (other than a Receivables Subsidiary) in a Qualified Receivables Transaction to repurchase receivables 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 the Borrower or a Restricted Subsidiary (other than a Receivables Subsidiary). “Receivables Subsidiary” means a special purpose wholly-owned Subsidiary created by the Borrower or any Restricted Subsidiary in connection with the transactions contemplated by a Qualified Receivables Transaction, which Subsidiary engages in no activities other than those incidental to such Qualified Receivables Transaction and which is designated as a Receivables Subsidiary by the Borrower’s Board of Directors. Any such designation by the Board of Directors shall be evidenced by filing with the Administrative Agent of a board resolution of the Borrower giving effect to such designation and an officers’ certificate certifying, to the best of such officers’ knowledge and belief after consulting with counsel, that such designation, and the transactions in which the Receivables Subsidiary will engage, comply with the requirements of the definition of Qualified Receivables Transaction. “Recipient” means the Administrative Agent, any Lender or any L/C Issuer, as applicable. “Reference Time” with respect to any setting of the then-current Benchmark means (a) if the RFR for such Benchmark is SONIA, then 5.00 p.m. (London, England time) on a day that is four (4) Business Days prior to such setting, (b) if the Benchmark is determined by reference to Daily Simple SOFR, then 5.00 p.m. on a day that is four (4) Business Days prior to such setting or (c) if such Benchmark is neither Daily Simple SOFR nor SONIA, the time determined by the Administrative Agent in its reasonable discretion. “Refinanced Debt” has the meaning specified in the definition of “Credit Agreement Refinancing Indebtedness”. “Refinancing” has the meaning specified in Section 4.01(c). “Refinancing Amendment” means an amendment, supplement, or joinder to this Agreement executed by the Borrower, the Administrative Agent, each Additional Refinancing Lender and each Lender that agrees to provide any portion of Refinancing Term Commitments, Refinancing Term Loans, Other Revolving Commitments or Other Revolving Loans, in each case in accordance with Section 2.17. “Refinancing Facility” means, at any time, as the context may require, the aggregate amount of Refinancing Term Commitments and/or Other Revolving Commitments of a given Refinancing Series at such time and, in each case, but without duplication, the Credit Extensions made thereunder. 55
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“Refinancing Series” means all Refinancing Term Loans, Refinancing Term Commitments, Other Revolving Commitments or Other Revolving Loans that are established pursuant to the same Refinancing Amendment (or any subsequent Refinancing Amendment to the extent such Refinancing Amendment expressly provides that the Refinancing Term Loans, Refinancing Term Commitments, Other Revolving Commitments or Other Revolving Credit Loans provided for therein are intended to be a part of any previously established Refinancing Series) and that provide for the same Effective Yield and, in the case of Refinancing Term Loans or Refinancing Term Commitments, amortization schedule. “Refinancing Term Commitments” means one or more Classes of Term Commitments that are established to fund Refinancing Term Loans hereunder pursuant to a Refinancing Amendment. “Refinancing Term Loan Borrowing” means a borrowing consisting of one or more simultaneous Refinancing Term Loans of the same Type under a Refinancing Facility and, in the case of Eurodollar Rate Loans or Term SOFR Loans, having the same Interest Period made pursuant to Section 2.17. “Refinancing Term Loans” means one or more Classes of Term Loans that result from a Refinancing Amendment. “Register” has the meaning specified in Section 10.06(c). “Registration Rights Agreement” means that certain Registration Rights Agreement by and between Post and the Borrower, dated as of March 10, 2022, as amended, modified, supplemented, restated or replaced from time to time. “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, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping or leaching of any Hazardous Material into the environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material). “Relevant Governmental Body” means (a) with respect to a Benchmark Replacement in respect of Loans denominated in U.S. Dollars, the Federal Reserve Board, the NYFRB and/or the CME Term SOFR Administrator, as applicable, or a committee officially endorsed or convened by the Federal Reserve Board, the NYFRB or the CME Term SOFR Administrator or, in each case, any successor thereto, (b) with respect to a Benchmark Replacement in respect of Loans denominated in Sterling, the Bank of England, or a committee officially endorsed or convened by the Bank of England or, in each case, any successor thereto and (c) with respect to a Benchmark Replacement in respect of Loans denominated in Euros, the European Central Bank, or a committee officially endorsed or convened by the European Central Bank or, in each case, any successor thereto. 56
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“Relevant Rate” means (a) with respect to any Term SOFR Borrowing denominated in U.S. Dollars, the Adjusted Term SOFR Rate, (b) with respect to any Term Benchmark Borrowing denominated in Euros, the Adjusted Eurodollar Rate, or (c) with respect to any Borrowing denominated in Sterling, the applicable Adjusted Daily Simple RFR. “Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping or leaching of any Hazardous Material into the environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material). “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived. “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Term Loans or Revolving Credit Loans, a Committed Loan Notice or Conversion/Continuation Notice, as applicable and (b) with respect to an L/C Credit Extension, a Letter of Credit Application. “Required Facility Lenders” means, as of any date of determination, with respect to any Facility, Lenders having more than 50% of the sum of (a) the Total Outstandings under such Facility (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations under such Facility being deemed “held” by such Lender for purposes of this definition) and (b) the aggregate unused Commitments under such Facility; provided that the unused Commitments of, and the portion of the Total Outstandings under such Facility held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of the Required Facility Lenders. “Required Lenders” means, as of any date of determination, Lenders holding more than 50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Revolving Credit Lender for purposes of this definition) and (b) aggregate unused Commitments; provided that the unused Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders. “Required Revolving Credit Lenders” means, as of any date of determination, Revolving Credit Lenders holding more than 50% of the sum of the (a) Total Revolving Credit Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Revolving Credit Lender for purposes of this definition) and (b) aggregate unused Revolving Credit Commitments; provided that the unused Revolving Credit Commitment of, and the portion of the Total Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Credit Lenders. “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority. 57
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“Responsible Officer” means the chief executive officer, president, chief financial officer, executive vice president, senior vice president, chief accounting officer, director of corporate finance, treasurer, assistant treasurer or controller of a Loan Party, and including solely for purposes of Section 4.01(a), the secretary or assistant secretary of a 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 Indebtedness” has the meaning specified in Section 7.14. “Restricted Payment” means any dividend, other distribution or other payment (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of any Person or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to any Person’s shareholders, partners or members (or the equivalent of any thereof) or any option, warrant or other right to acquire any such dividend or other distribution or payment. “Restricted Subsidiary” means any Subsidiary other than an Unrestricted Subsidiary. “Revolving Credit Borrowing” means a borrowing consisting of one or more simultaneous Revolving Credit Loans of the same Class and Type and, in the case of Eurodollar Rate Loans or Term SOFR Loans, having the same Interest Period made pursuant to Section 2.01. “Revolving Credit Commitment” means, as to each 2025 Revolving Credit Lender, its Original2025 Revolving Credit Commitment and shall include, as the context may require, any other Incremental Revolving Credit Commitments and any other Other Revolving Commitments of such Revolving Credit Lender. “Revolving Credit Facility” means the collective reference to the Original2025 Revolving Credit Facility and any additional revolving credit facilities resulting from Incremental Revolving Credit Commitments and Other Revolving Commitments and the Credit Extensions made thereunder, or, as the context may require, to any of such revolving credit facilities individually. “Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit Commitment at such time or that has Revolving Credit Loans or risk participations in L/C Obligations outstanding at such time. “Revolving Credit Loan” has the meaning specified in Section 2.01 and shall include, as the context may require, any Incremental Revolving Loans or Other Revolving Loans. “RFR” means, for any RFR Loan denominated in Sterling, SONIA. 58
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“RFR Borrowing” means, as to any Borrowing, the RFR Loans comprising such Borrowing. “RFR Business Day” means, for any Loan denominated in 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, England. “RFR Interest Day” has the meaning specified in the definition of “Daily Simple RFR”. “RFR Loan” means a Loan that bears interest at a rate based on the Adjusted Daily Simple RFR. “Sanctions” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, the United Nations Security Council, the European Union, any European Union member state, or Her Majesty’s Treasury of the United Kingdom. “Sanctioned Country” means a country, territory or a government of a country or territory that is subject to Sanctionsthe target of comprehensive territory-wide Sanctions (currently, Cuba, Iran, Syria, North Korea, the so-called Luhansk People’s Republic, the so-called Donetsk People’s Republic, the Crimea region of Ukraine, and the non-government controlled oblasts of Zaporizhzhia and Kherson of Ukraine). “Sanctioned Person” means (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, any European Union member state, or HerHis Majesty’s Treasury of the United Kingdom, (b) any Person operating, organized or resident in a Sanctioned Country or, (c) the Government of a Sanctioned Country or the Government of Venezuela or (d) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a), (b) or (bc). “Sanctions” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, the United Nations Security Council, the European Union, any European Union member state, or His Majesty’s Treasury of the United Kingdom. “S&P” means S&P Global Inc., through its S&P Global Ratings division or any successor thereto. “Same Day Funds” means (a) with respect to disbursements and payments in U.S. Dollars, immediately available funds and (b) with respect to disbursements and payments in an Alternative Currency, same day or other funds as may be reasonably determined by the 59
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Administrative Agent or the applicable L/C Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlements of international banking transactions in the relevant Alternative Currency. “Scheduled Revolving Facility Maturity Date” has the meaning specified in the definition of “Maturity Date”. “SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions. “Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between any Loan Party and any Cash Management Bank. “Secured Hedge Agreement” means any interest rate, currency or commodity Swap Contract permitted under this Agreement that is entered into by and between a Loan Party and any Hedge Bank. “Secured Net Leverage Ratio” means, with respect to any Measurement Period, the ratio of (i) Consolidated Senior Secured Debt (which shall be calculated net of the Unrestricted Cash Amount) as of the last day of such Measurement Period to (ii) Consolidated EBITDA for such Measurement Period, in each case for the Borrower and its Restricted Subsidiaries. “Secured Parties” means, collectively, the Administrative Agent, the Lenders, the L/C Issuers, with respect to any Secured Cash Management Agreement, the Cash Management Banks, with respect to any Secured Hedge Agreement, the Hedge Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05, and the other Persons the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Collateral Documents. “Senior Notes” mean Borrower’s 7.00% Senior Notes due 2030 issued pursuant to that certain Indenture, dated as of March 10, 2022, between the Borrower and Computershare Trust Company, National Association, as trustee. “Shareholders’ Equity” means, as of any date of determination, consolidated shareholders’, partners’ or members’ equity of the Borrower and its Restricted Subsidiaries as of that date determined in accordance with GAAP. “SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator. “SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate). “SOFR Administrator’s Website” means the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time. 60
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“SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR”. “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 mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as the amount that, in 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. “SONIA” means, with respect to any Business Day, a rate per annum equal to the Sterling Overnight Index Average for such Business Day published by the SONIA Administrator on the SONIA Administrator’s Website on the immediately succeeding Business Day. “SONIA Administrator” means the Bank of England (or any successor administrator of the Sterling Overnight Index Average). “SONIA Administrator’s Website” means the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time. “Special Purpose Vehicle” means a trust, partnership or other special purpose Person established by the Borrower and/or any of its Restricted Subsidiaries to implement a Qualified Receivables Transaction. “Spot Rate” for a currency means the rate determined by the Administrative Agent or the applicable L/C Issuer, 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 Administrative Agent or the applicable L/C Issuer may obtain such spot rate from another financial institution designated by the Administrative Agent or the applicable L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; provided further that the applicable L/C Issuer may use such spot rate quoted on the date as of which any foreign exchange computation is to be made in the case of any Letter of Credit denominated in an Alternative Currency. “Springing Maturity Date” has the meaning specified in the definition of “Maturity Date”. 61
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“Standard Securitization Undertakings” means representations, warranties, covenants, performance guarantees and indemnities entered into by the Borrower or any Restricted Subsidiary of the Borrower which, in the good faith judgment of the board of directors of the appropriate company, are reasonably customary in an accounts receivable transaction, including any Receivables Repurchase Obligation. “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 arithmetic mean, taken over each day in such Interest Period, of the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the FRB to which the Administrative Agent is subject with respect to the Eurodollar Rate, for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” (as such term is defined in Regulation D of the FRB)). Such reserve percentages shall include those imposed pursuant to such Regulation D. Without limiting the effect of the foregoing, the Statutory Reserve Rate shall reflect any other reserves required to be maintained by such member banks with respect to (a) any category of liabilities which includes deposits by reference to which the applicable Eurodollar Rate or any other interest rate of a Loan is to be determined or (b) any category of extensions of credit or other assets which include Eurodollar Rate Loans. Eurodollar Rate 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” or “£” mean the lawful currency of the United Kingdom. “Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower. “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms 62
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and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other similar master agreement relating to a transaction described in clause (a) (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement. “Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender). “TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007. “T2” means the real time gross settlement system operated by the Eurosystem, or any successor system. “TARGET Day” means any day on which TARGETT2 (or, if such payment system ceases to be operative, such other payment system, if any, determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro. “Tax and Related Distributions” means, without duplication, (a) for any taxable period for which the Borrower is a member of a consolidated, combined, unitary or similar tax group for U.S. federal and/or applicable state or local tax purposes, payments to discharge the consolidated, combined, unitary or similar Tax liabilities of such tax group when and as due, to the extent such liabilities are attributable to the income of the Borrower and/or any Restricted Subsidiary of the Borrower (or any Unrestricted Subsidiary of the Borrower to the extent such Unrestricted Subsidiary has distributed a corresponding amount to the Borrower or a Restricted Subsidiary), taking into account any carryovers of losses, excess interest deductions, and any available credits, in each case incurred on or following the Closing Date; provided that for each taxable period the amount of any such payment shall not be greater than the amount of such taxes that are reasonably expected to be due and payable by the Borrower and such Subsidiaries if the Borrower and such Subsidiaries filed a consolidated, combined, unitary or similar type tax return with the Borrower as the consolidated parent, and (b) any payment made by the Borrower (including, without limitation, any amounts treated as being paid on behalf of Old BRBR or any of its or Borrower’s Subsidiaries) pursuant to the Tax Matters Agreement, the Tax Matters Agreement (2019), or the Tax Receivable Agreement (in each case as in effect on the date of this Agreement, or as amended, modified, supplemented, restated or replaced from time to time in a manner not materially adverse to the 63
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interests of the Lenders), other than any payments described in Article IV of the Tax Receivable Agreement. “Tax Matters Agreement" means that certain Tax Matters Agreement by and among Post, the Borrower, and Old BRBR, dated as of March 10, 2022, as amended, modified, supplemented, restated or replaced from time to time and the tax receivable agreement, if any, entered into in accordance with Section 2.09 thereof, as amended, modified, supplemented, restated or replaced from time to time. “Tax Matters Agreement (2019)” means that certain Tax Matters Agreement by and among Post, the Borrower, and Old BRBR, dated as of October 21, 2019, as amended, modified, supplemented, restated or replaced from time to time. "Tax Receivable Agreement" means that certain Tax Receivable Agreement by and among Post, BellRing Brands, LLC and Old BRBR, dated as of October 21, 2019, as amended, modified, supplemented, restated or replaced from time to time. “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. “Term Benchmark” 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 Adjusted Term SOFR Rate or the Adjusted Eurodollar Rate. “Term Borrowing” means a borrowing consisting of simultaneous Term Loans of the same Class and Type and, in the case of Eurodollar Rate Loans or Term SOFR Loans, having the same Interest Period made by each of the applicable Term Lenders. “Term Commitment” means, as to each Term Lender, if the context so requires, its commitment to make Term Loans pursuant to a Joinder Agreement or a Refinancing Amendment, as applicable. “Term Lender” means, at any time, any Lender that has a Term Commitment or a Term Loan at such time. “Term Loan” means an Incremental Term Loan or Refinancing Term Loan, individually or collectively as the context may require. “Term SOFR” means, (a) for any calculation with respect to a Term SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the CME Term SOFR Administrator; provided, however, that if as of 5:00 p.m. on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been 64
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published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the CME Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the CME Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and (b) for any calculation with respect to a Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the CME Term SOFR Administrator; provided, however, that if as of 5:00 p.m. on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the CME Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the CME Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate SOFR Determination Day; provided, further, that if Term SOFR determined as provided above (including pursuant to the proviso under clause (a) or clause (b) above) shall everwould be less than zero, then Term SOFRthe Floor, such rate shall be deemed to be zeroequal to the Floor for the purposes of this Agreement. “Term SOFR Loan” means a Loan that bears interest at a rate based on Term SOFR. “Term SOFR Reference Rate” means the rate per annum determined by the Administrative Agent as the forward looking term rate based on SOFR. “Threshold Amount” means $65,000,00075,000,000. “Total Net Leverage Ratio” means, with respect to any Measurement Period, the ratio of (a) Consolidated Funded Indebtedness (which shall be calculated net of the Unrestricted Cash Amount) as of the last day of such Measurement Period to (b) Consolidated EBITDA for the most recently completed Measurement Period, in each case, for the Borrower and its Restricted Subsidiaries. “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations. “Total Revolving Credit Outstandings” means the aggregate Outstanding Amount of all Revolving Credit Loans and L/C Obligations. 65
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“Trade Date” has the meaning specified in Section 10.06(h). “Trademark and Domain Name License Agreement” means that certain Amended and Restated Trademark and Domain Name License Agreement, dated as of March 10, 2022, by and among Post, certain Subsidiaries of Post, Borrower, and certain Subsidiaries of the Borrower as amended, modified, supplemented, restated or replaced from time to time. “Transaction Agreement” means the Transaction Agreement and Plan of Merger, dated as of October 26, 2021, by and among the Borrower, Post, Old BRBR and BellRing Merger Sub Corporation, as amended, modified, supplemented, restated or replaced from time to time. “Transaction Merger Consideration” has the meaning specified in Section 6.10. “Transactions” means, collectively, (a) the entering into by the Borrower and the other Loan Parties of the Loan Documents to which they are or are intended to be a party, (b) the Refinancing, (c) any initial Credit Extensions on the Closing Date, (d) each step and/or transaction contemplated by, or to effectuate, the Transaction Agreement (as in effect on the date of this Agreement, or as amended, modified or restated from time to time in a manner not materially adverse to the interests of the Lenders) and entering into any agreements with respect to the consummation of any debt exchange and/or debt for equity exchange in connection with or contemplated by the Transaction Agreement (as in effect on the date of this Agreement, or as amended, modified or restated from time to time in a manner not materially adverse to the interests of the Lenders) and (e) the payment of any fees, costs and expenses incurred in connection with the consummation of any of the foregoing. “Type” means, with respect to a Loan, its character as a Base Rate Loan, a Eurodollar Rate Loan, a Term SOFR Loan or an RFR Loan. “UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided that if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority. “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 Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution. 66
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“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment. “United States” and “U.S.” mean the United States of America. “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i). “Unrestricted Cash Amount” means, as of any date of determination, the aggregate amount of (i) unrestricted cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries and (ii) cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries restricted in favor of, or pledged to, the Administrative Agent, any Lender or any L/C Issuer (in each case, in its capacity as such) whether or not held in an account pledged to the Administrative Agent, any Lender or any L/C Issuer. “Unrestricted Subsidiary”means any Subsidiary of the Borrower that is designated by the Borrower as an Unrestricted Subsidiary in accordance with Section 6.17, but only to the extent that such Subsidiary: (o) has no Indebtedness other than Non-Recourse Debt; and (p) is not party to any agreement, contract, arrangement or understanding with the Borrower or any Restricted Subsidiary of the Borrower unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Borrower. “U.S. Dollar” and “$” mean lawful money of the United States. “U.S. Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in U.S. Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof in U.S. Dollars as determined by the Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Valuation Date) for the purchase of U.S. Dollars with such Alternative Currency. “U.S. Government Securities Business Day” means 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. “U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code. “U.S. Tax Compliance Certificate” means a certificate substantially in the form of any of Exhibits H-1 through H-4, as the context requires. “Valuation Date” means (i) the date two Business Days prior to the making, continuing or converting of any Revolving Credit Loan or the date of issuance, amendment or continuation 67
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of any Letter of Credit, (ii) the first Business Day of each calendar month, (iii) any other date reasonably designated by the Administrative Agent or an L/C Issuer in order to reasonably assure a correct exchange rate or (iv) any date that is otherwise expressly provided for herein. “Voting Stock” means, with respect to any Person, the Equity Interests of such Person that is at the time entitled to vote in the election of the board of directors of such Person. “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (ii) the then outstanding principal amount of such Indebtedness; provided that for purposes of determining the Weighted Average Life to Maturity of any Indebtedness that is being modified, refinanced, refunded, renewed, replaced or extended (the “Applicable Indebtedness”), the effect of any prepayments made on such Applicable Indebtedness prior to the date of the applicable modification, refinancing, refunding, renewal, replacement or extension shall be disregarded. “Withholding Agent” means any Loan Party and the Administrative Agent. “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. “Withholding Agent” means any Loan Party and the Administrative Agent. Section 1.02Other Interpretive Provisions . With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document: (a) The definitions of terms herein shall apply equally to the singular and plural forms of theterms 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 thephrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word“shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument orother document (including any Organization Document) shall be construed as referring to such 68
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agreement, instrument or other document as from time to time as amended, modified, supplemented, restated orreplaced (subject to any restrictions on such amendments, restatements, supplements or modifications set forthherein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include suchPerson’s successors and permitted assigns, (iii) the words “herein,” “hereof” and “hereunder,” and words of similarimport when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and notto any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits andSchedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the LoanDocument in which such references appear, (v) any reference to any law shall include all statutory and regulatoryprovisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulationshall, unless otherwise specified, refer to such law or regulation as amended, modified, supplemented, restated orreplaced from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaningand effect and to refer to any and all tangible and intangible assets and properties, including cash, securities,accounts and contract rights. (b) In the computation of periods of time from a specified date to a later specified date, the word“from” means “from and including;” the words “to” and “until” each mean “to but excluding” and the word“through” means “to and including.” (c) Section headings herein and in the other Loan Documents are included for convenience ofreference only and shall not affect the interpretation of this Agreement or any other Loan Document. Section 1.03Accounting Terms . (a) Generally. Subject to Section 1.03(b), all accounting terms not specifically or completely defined herein shall be construed in conformity with GAAP, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with GAAP, applied on a consistent basis, as in effect from time to time and applied in a manner consistent with that used in preparing the audited annual financial statements of Old BRBR for the period ended September 30, 2021, except as otherwise specifically prescribed herein and except for any differences arising because such annual financial statements of Old BRBR do not take into account the change of the reporting entity from Old BRBR to the Borrower and any or all of the Transactions; provided that if at any time a change in GAAP occurs that would result in a change to the method of accounting for obligations relating to a lease that was accounted for by a Person as an operating lease as of September 30, 2019 (or any similar lease entered into after September 30, 2019 by such Person), such obligations shall be accounted for as obligations relating to an operating lease and not as a Capital Lease. (a) (b) Changes in GAAP. If at any time any change in GAAP would affect the computation ofany financial ratio or requirement set forth in any Loan Document, and either the Borrower or the RequiredLenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith toamend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject tothe approval of the Required Lenders); provided that, until so amended, such ratio or requirement shall continue tobe computed in accordance with GAAP prior to such change therein. (b) (c) Indebtedness. Notwithstanding any other provision contained herein, all terms of anaccounting or financial nature used herein shall be construed, and all 69
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computations of amounts and ratios referred to herein shall be made (i) without giving effect to any election underAccounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or FinancialAccounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borroweror any Subsidiary at “fair value”, as defined therein and (ii) without giving effect to any treatment of Indebtednessin respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any otherAccounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value anysuch Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all timesbe valued at the full stated principal amount thereof. (c) (d) Old BRBR. For the avoidance of doubt, with respect to this Agreement and each otherLoan Document, with respect to any historical financial statements financial ratios, financial calculations and/orfinancial performance of the Borrower for any period or partial period prior to the Closing Date, such financialstatements financial ratios, financial calculations and/or financial performance shall be deemed to be references tofinancial statements financial ratios, financial calculations and/or financial performance, as applicable, of OldBRBR. Section 1.04Rounding . Any financial ratios required to be maintained or complied with by the Borrower pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under 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). Section 1.05Times of Day . Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable). Section 1.06 Letter of Credit Amounts . With respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the amount available to be drawn thereunder, the amount of such Letter of Credit shall be deemed to be the maximum amount that may be drawn under such Letter of Credit during the remaining life thereof. Section 1.07Currency Equivalents Generally; Change of Currency . (a) For purposes of this Agreement and the other Loan Documents (other than Article 2, Article 9 and Article 10 hereof), where the permissibility of a transaction or determinations of required actions or circumstances depend upon compliance with, or are determined by reference to, amounts stated in U.S. Dollars, such amounts shall be deemed to refer to U.S. Dollars or U.S. Dollar Equivalents and any requisite currency translation shall be based on the Spot Rate in effect on the Business Day of such transaction or determination. Notwithstanding the foregoing, for purposes of determining compliance with Sections 7.01, 7.02, 70
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and 7.03 with respect to any amount of Liens, Investment or Indebtedness in currencies other than U.S. Dollars, no Default shall be deemed to have occurred solely as a result of changes in rates of exchange occurring after the time such Lien is created, Indebtedness is incurred or Investment is made. Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify with the Borrower’s consent (not to be unreasonably withheld) to appropriately reflect a change in currency of any country and any relevant market conventions or practices relating to such change in currency. (b) Wherever in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of a Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in U.S. Dollars, but such Borrowing, Loan or Letter of Credit is denominated in an Alternative Currency, such amount shall be the U.S. Dollar Equivalent of such amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as reasonably determined by the Administrative Agent or L/C Issuer, as the case may be. Section 1.08Timing of Payment and Performance . 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 (other than as described in the definition of Interest Period) or performance shall extend to the immediately succeeding Business Day. Section 1.09Certain Calculations . (a) All pro forma calculations permitted or required to be made by the Borrower or anyRestricted Subsidiary pursuant to this Agreement shall include only those adjustments that have been certified by aResponsible Officer of the Borrower as having been prepared in good faith based upon reasonably detailed writtenassumptions believed by the Borrower at the time of preparation to be reasonable and which are reasonablyforeseeable. Any ratio calculated hereunder that includes Consolidated EBITDA shall look to ConsolidatedEBITDA for the most recently completed Measurement Period. (b) The pro forma Secured Net Leverage Ratio, Total Net Leverage Ratio and ConsolidatedInterest Coverage Ratio shall be calculated as follows: (i) in the event that the Borrower or any Restricted Subsidiary incurs, assumes,guarantees, redeems, retires or extinguishes any Indebtedness subsequent to the last day of the MeasurementPeriod for which such pro forma ratio is being calculated but on or prior to the date of the event for whichthe calculation of such pro forma ratio is being made (a “Ratio Calculation Date”), then such pro formaratio shall be calculated as if such incurrence, assumption, guarantee, redemption, retirement orextinguishment of Indebtedness (and all other incurrences, assumptions, guarantees, redemptions,retirements or extinguishments of Indebtedness consummated since the last day of the applicableMeasurement Period but on or prior to the Ratio Calculation Date) had 71
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occurred at the last day of the applicable Measurement Period; provided that (i) in the case of anyincurrence of Indebtedness or establishment of any revolving credit or delayed draw commitments, (x) aborrowing of the maximum amount of Indebtedness available under such revolving credit or delayed drawcommitments shall be assumed and (y) the cash proceeds of such incurred Indebtedness shall be excludedfrom amounts that may be netted in the calculation of the pro forma Secured Net Leverage Ratio or the proforma Total Net Leverage Ratio, as applicable and (ii) the pro forma Consolidated Interest Charges for theapplicable Measurement Period shall be calculated assuming such Indebtedness had been outstanding orrepaid, as the case may be, since the first day and through the end of the applicable Measurement Period(taking into account any interest rate Swap Contracts applicable to such Indebtedness); (ii) in the event that any Permitted Acquisitions or other permitted Investments in thenature of an acquisition are made subsequent to the last day of the applicable Measurement Period forwhich such pro forma ratio is being calculated but on or prior to the Ratio Calculation Date, thenConsolidated EBITDA shall be (x) increased by an amount equal to the Consolidated EBITDA attributableto the property or Investment that is the subject of such Permitted Acquisition or other permitted Investmentin the nature of an acquisition, in each case assuming such Permitted Acquisition or other permittedInvestment in the nature of an acquisition had been made on the first day of the applicable MeasurementPeriod and (y) otherwise calculated as set forth in the third paragraph of the definition of “ConsolidatedEBITDA” on a Pro Forma Basis; (iii) in the event that Dispositions are made subsequent to the last day of the applicableMeasurement Period for which such pro forma ratio is being calculated but on or prior to the relevant RatioCalculation Date, then Consolidated EBITDA shall be reduced by an amount equal to the ConsolidatedEBITDA (if positive) attributable to the property that is the subject of such Disposition or increased by anamount equal to the Consolidated EBITDA (if negative) attributable thereto, in each case assuming suchDisposition had been made on the first day of the applicable Measurement Period; and (iv) for the avoidance of doubt, the cash used in connection with any transaction specifiedabove shall be excluded from amounts that may be netted in the calculation of pro forma Secured NetLeverage Ratio or the pro forma Total Net Leverage Ratio, as applicable. (c) Notwithstanding anything to the contrary in this Agreement, solely for the purpose of (A)measuring the relevant financial ratios and basket availability or pro forma compliance with any covenant withrespect to the incurrence of any Indebtedness (including any Incremental Term Loans, Incremental RevolvingLoans, Incremental Term Loan Commitments or Incremental Revolving Credit Commitments) or Liens or themaking of any Investments (including the determination of whether an acquisition is a Permitted Acquisition) orDispositions or the designation of any Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary or (B)other than in connection with the incurrence of any Incremental Revolving Credit Commitments, any OtherRevolving Commitments or any Revolving Credit Loans, determining compliance with representations andwarranties or the occurrence of any Default or Event of Default, in each case, in connection with a LimitedCondition Acquisition or the incurrence or payment of Indebtedness or incurrence of Liens in connection therewith,if the Borrower has made an LCA Election with respect to such Limited Condition Acquisition, the date ofdetermination of whether any such action is permitted hereunder shall be deemed to be the date on which thedefinitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, aftergiving effect on a Pro Forma Basis to the Limited Condition Acquisition and the other transactions to be enteredinto in connection therewith as if 72
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they had occurred at the beginning of the most recently completed Measurement Period ending prior to the LCATest Date, the Borrower could have taken such action on the relevant LCA Test Date in compliance with suchfinancial ratio or basket, such financial ratio or basket shall be deemed to have been complied with. If the Borrowerhas made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequentcalculation of any financial ratio or basket availability on or following the relevant LCA Test Date and prior to theearlier of (x) the date on which such Limited Condition Acquisition is consummated or (y) the date that thedefinitive agreement for such Limited Condition Acquisition is terminated or expires without consummation ofsuch Limited Condition Acquisition, any such financial ratio or basket availability shall be calculated (and tested)on (A) a Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connectiontherewith (including any incurrence or payment of Indebtedness (and the use of proceeds of such Indebtedness) orthe incurrence of any Liens in connection therewith) have been consummated until such time as the applicableLimited Condition Acquisition has actually closed or the definitive agreement with respect thereto has beenterminated and (B) solely with respect to the making of any Restricted Payments, on a standalone basis withoutgiving effect to such Limited Condition Acquisition and the other transactions in connection therewith. (d) For purposes of determining compliance with Sections 7.01, 7.02, 7.03, 7.06 and 7.14, withrespect to any grant of any Lien, the making of any Investment, the incurrence of any Indebtedness, the making ofany Restricted Payment, or the prepayment, redemption, purchase, defeasement or satisfaction of RestrictedIndebtedness (each, a “Covenant Transaction”) in reliance on a “basket” that makes reference to a percentage ofConsolidated EBITDA, no Default or Event of Default shall be deemed to have occurred solely as a result ofchanges in the amount of Consolidated EBITDA occurring after the time such Covenant Transaction is incurred,granted or made in reliance on such provision. (e) For purposes of calculating any “net” ratio test utilized in any debt incurrence test (includingany amounts permitted to be incurred pursuant to Section 2.14 and Section 7.03(s)), such ratio shall be calculatedafter giving effect to any such incurrence on a pro forma basis, and, in each case, with respect to any revolvingcredit or delayed draw commitments being established utilizing a debt incurrence test (including any IncrementalRevolving Commitment), assuming a borrowing of the maximum amount of such revolving credit or delayed drawcommitment (but for the avoidance of doubt, no other previously established revolving commitment), and suchcalculation shall be made excluding the cash proceeds from such incurrence from the amount of cash and CashEquivalents that may be netted in the calculation of the pro forma Secured Net Leverage Ratio or the pro formaTotal Net Leverage Ratio, as applicable. (f) For purposes of determining compliance at any time with Section 7.01, Section 7.02, Section7.03, Section 7.06 and Section 7.14, in the event that any Lien, Investment, Indebtedness, Restricted Payment orpayment of Restricted Indebtedness, as applicable, meets the criteria of more than one of the categories oftransactions within such covenant or items permitted pursuant to any clause of such Sections 7.01, 7.02, 7.03, 7.06and 7.14, the Borrower, in its sole discretion, from time to time, may classify or reclassify such transaction or item(or portion thereof) within the applicable covenant and will only be required to include the amount and type of suchtransaction (or portion thereof) in any one category within the applicable covenant; provided that, notwithstandingthe foregoing, Liens of the nature described in Sections 7.01(a) and (y) may only be incurred and exist under suchrespective sections, Indebtedness of the nature described in Section 7.03(a)(A) may only be incurred and existunder such Section, any of the Senior Notes described in Section 7.03(a)(B) may only be incurred and exist undersuch Section, Indebtedness of the nature described in Section 7.03(d) may only be incurred and exist under suchSection and Incremental Equivalent Debt may only be incurred and exist under Section 7.03(s). 73
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Section 1.10Rates. The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “Eurodollar Rate”, “Term SOFR”, “Daily Simple RFR” or with respect to any comparable or successor rates. Section 1.11 Section 1.10 Divisions . For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time. Section 1.12Section 1.11 Interest Rates; Benchmark Notification . The interest rate on a Loan denominated in U.S. Dollars or an Alternative Currency may be derived from an interest rate benchmark that may be discontinued or that is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section 3.08(a) provides a mechanism for determining an alternative rate of interest. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced 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. Wherever in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of a Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in U.S. Dollars, but such Borrowing, Loan or Letter of Credit is denominated in an Alternative Currency, such amount shall be the U.S. Dollar Equivalent of such amount (rounded to the 74
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nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as reasonably determined by the Administrative Agent or L/C Issuer, as the case may be. Section 1.13Section 1.12 The Transactions . Notwithstanding anything to the contrary set forth herein or in any other Loan Document, no provision of this Agreement or any other Loan Document shall prevent the consummation of any of the Transactions, the consummation of the Transactions shall not give rise to any Default or Event of Default and the consummation of any of the Transactions shall not constitute usage of any baskets hereunder or under any of the other Loan Documents. Article 2.THE COMMITMENTS AND CREDIT EXTENSIONS Section 2.01The Revolving Credit Borrowings . (a) Subject to the terms and conditions set forth herein, each Revolving Credit Lender severally agrees to make loans (each such loan, a “Revolving Credit Loan”) to the Borrower in U.S. Dollars or an Alternative Currency, in each case, from time to time, on any Business Day during the applicable Availability Period for the Revolving Credit Facility under which such Revolving Credit Lender has a Revolving Credit Commitment, in an aggregate amount not to exceed at any time outstanding the amount of such Revolving Credit Lender’s Revolving Credit Commitment; provided, however, that after giving effect to any Revolving Credit Borrowing, (i) the Total Revolving Credit Outstandings shall not exceed the aggregate amount of the Revolving Credit Lenders’ Revolving Credit Commitments at such time and (ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender plus such Revolving Credit Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations shall not exceed such Revolving Credit Lender’s Revolving Credit Commitment. Within the limits of each Revolving Credit Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Revolving Credit Loans (x) denominated in U.S. Dollars may be Base Rate Loans or Term SOFR Loans, (y) denominated in Euros, shall be Eurodollar Rate Loans and (z) denominated in Sterling shall be RFR Loans, in each case, as further provided herein. Section 2.02Borrowings, Conversions and Continuations of Loans . (a) Each Borrowing, each conversion of Term Loans or Revolving Credit Loans from one Typeto the other, and each continuation of Term SOFR Loans, Eurodollar Rate Loans or RFR Loans shall be made uponthe Borrower’s irrevocable notice to the Administrative Agent, which may be given by “pdf” or similar electronicformat, in the form of a Committed Loan Notice or a Conversion/Continuation Notice, as applicable (each, a“Notice”). Each such Notice must be received by the Administrative Agent not later than (i) 11:00 a.m. threeBusiness Days prior to the requested date of any Borrowing or continuation of Term SOFR Loans, 75
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Eurodollar Rate Loans or of any conversion of or conversion to Term SOFR Loans or Eurodollar Rate Loans, (ii)11:00 a.m. five Business Days prior to the requested date of any Borrowing or continuation of RFR Loans, and (iii)11:00 a.m. on the requested date of any Borrowing of Base Rate Loans. Each Borrowing of, conversion to orcontinuation of, as applicable, Term SOFR Loans, Eurodollar Rate Loans or RFR Loans shall be in a minimumprincipal amount of $5,000,000 and whole multiples of $1,000,000 in excess thereof. Except as provided in Section2.03(c), each Borrowing of or conversion to Base Rate Loans shall be in a minimum principal amount of$1,000,000 or a whole multiple of $500,000 in excess thereof. Each Notice shall specify, as applicable, (1) whetherthe Borrower is requesting a Term Borrowing, a Revolving Credit Borrowing, a conversion of Term Loans orRevolving Credit Loans from one Type to the other, or a continuation of Term SOFR Loans or Eurodollar RateLoans, and in each case, the Class of the relevant Loans and Borrowings, (2) the requested date of the Borrowing,conversion or continuation, as the case may be (which shall be a Business Day), (3) the principal amount of Loansto be borrowed, converted or continued, (4) the Type of Loans to be borrowed or to which existing Term Loans orRevolving Credit Loans are to be converted, (5) if applicable, the duration of the applicable Interest Period withrespect thereto and (6) in the case of Revolving Credit Borrowings or Revolving Credit Loans, the currency of theLoans to be borrowed, continued or converted (provided, that if the Borrower shall fail to so specify, the applicableRevolving Credit Borrowing shall be denominated in U.S. Dollars). With respect to Loans denominated in U.S.Dollars, if the Borrower fails to specify a Type of Loan in a Committed Loan Notice or if the Borrower fails to givea timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or convertedto, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of theInterest Period then in effect with respect to the applicable Term SOFR Loans. If the Borrower requests aBorrowing of, conversion to, or continuation of Eurodollar Rate Loans or Term SOFR Loans in any suchCommitted Loan Notice or Conversion/Continuation Notice, as applicable, but fails to specify an Interest Period, itwill be deemed to have specified an Interest Period of one month. If the Borrower fails to give a timely noticerequesting a continuation of Term SOFR Loans or Eurodollar Rate Loans, then the Interest Period applicable to theLoans will be deemed to be an Interest Period of one month. No Loan may be converted into or continued as aLoan denominated in a different currency, but instead must be repaid or prepaid in the original currency of suchLoan and reborrowed in such other currency. (b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptlynotify each Appropriate Lender of the amount of its Applicable Percentage under the applicable Facility of theapplicable Term Loans or Revolving Credit Loans, and if no timely notice of a conversion or continuation isprovided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automaticconversion to Base Rate Loans described in Section 2.02(a). In the case of a Borrowing, each Appropriate Lendershall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the AdministrativeAgent’s Office not later than 12:00 p.m., in the case of any Term SOFR Loan, Eurodollar Rate Loan, RFR Loan orBase Rate Loan on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of theapplicable conditions set forth in Section 4.02 (or, if such Borrowing is to be made on the Closing Date, Section4.01), the Administrative Agent shall make all funds so received available to the Borrower in like funds as receivedby the Administrative Agent by wire transfer of such funds in accordance with instructions provided to (andreasonably acceptable to) the Administrative Agent by the Borrower; provided, however, that if, on the date aCommitted Loan Notice with respect to a Revolving Credit Borrowing is given by the Borrower, there are L/CBorrowings outstanding, then the proceeds of such Revolving Credit Borrowing, first, shall be applied to thepayment in full of any such L/C Borrowings, and second, shall be made available to the Borrower as providedabove. (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or convertedor a Term SOFR Loan may be continued or converted, in each case, only 76
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on the last day of an Interest Period for such Eurodollar Rate Loan or such Term SOFR Loan, as applicable. Duringthe existence of an Event of Default, no Loans may be requested as, converted to or continued as Term SOFRLoans or Eurodollar Rate Loans without the consent of the Required Facility Lenders with respect to the relevantFacility. (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the interestrate applicable to any Interest Period for Term SOFR Loans or Eurodollar Rate Loans upon determination of suchinterest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrowerand the Lenders of any change in the Prime Rate used in determining the Base Rate promptly following the publicannouncement of such change. (e) After giving effect to all Borrowings, all conversions of Loans from one Type to the other,and all continuations of Loans as the same Type, there shall not be more than ten (10) Interest Periods in effect atany one time. Section 2.03Letters of Credit. (a) The Letter of Credit Commitment. (i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, inreliance upon (among other things) the agreements of the Revolving Credit Lenders set forth in this Section2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter ofCredit Expiration Date, to issue Letters of Credit denominated in U.S. Dollars or, if the applicable L/CIssuer shall agree, in one or more Alternative Currencies for the account of the Borrower (or any of itsRestricted Subsidiaries (i) so long as (x) the Borrower is a joint and several co-applicant and (y) theapplicable L/C Issuer shall have received all documentation and other information with respect to suchRestricted Subsidiary that such L/C Issuer reasonably determines is necessary in order to allow such L/CIssuer to comply with applicable “know your customer” and anti-money laundering rules and regulations,including the Act and (ii) references to the “Borrower” in this Section 2.03 and elsewhere in this Agreementwith respect to requests for Letters of Credit (including extensions or continuations thereof) shall be deemedto include any such Restricted Subsidiary), and to amend or extend Letters of Credit previously issued by it,in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit issued by it; and(B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account ofthe Borrower and any drawings thereunder; provided that after giving effect to any L/C Credit Extensionwith respect to any Letter of Credit, (w) the Total Revolving Credit Outstandings shall not exceed theaggregate amount of the Revolving Credit Lenders’ Revolving Credit Commitments at such time, (x) theaggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus suchRevolving Credit Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all L/CObligations shall not exceed such Revolving Credit Lender’s Revolving Credit Commitment, (y) theOutstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit and (z) theaggregate amount of L/C Obligations owing to an L/C Issuer shall not exceed the amount set forth oppositesuch L/C Issuer’s name on Schedule 2.01 (as such Schedule may be amended with the consent of eachaffected L/C Issuer and the Borrower from time to time) under the caption “Letter of Credit Commitments”and no L/C Issuer shall be required to issue Letters of Credit in excess of its applicable amount so set forth;provided that it is understood and agreed that 77
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each L/C Issuer may, in its sole discretion, make L/C Credit Extensions in an aggregate amount above itsrespective share of the Letter of Credit Sublimit; and provided further that the issuance of any BankGuarantee hereunder shall be in the sole discretion of each Bank Guarantee Issuer. Each request by theBorrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by theBorrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso tothe preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, theBorrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may,during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or thathave been drawn upon and reimbursed. (ii) No L/C Issuer shall issue any Letter of Credit if: (A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter ofCredit would occur more than twelve months after the date of issuance or last extension thereof,unless the Required Revolving Credit Lenders have approved such expiry date; or (B) the expiry date of such requested Letter of Credit would occur after the Letterof Credit Expiration Date, unless such Letter of Credit is Cash Collateralized no less than fifteen(15) days prior to the Letter of Credit Expiration Date at 105% of the face amount thereof. (iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if: (A) any order, judgment or decree of any Governmental Authority or arbitratorshall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, orany Law applicable to such L/C Issuer or any request or directive (whether or not having the force oflaw) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, orrequest that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter ofCredit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit anyrestriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensatedhereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer anyunreimbursed loss, cost or expense which was not applicable on the Closing Date and which suchL/C Issuer in good faith deems material to it; (B) the issuance of such Letter of Credit would violate one or more policies ofsuch L/C Issuer applicable to letters of credit generally; (C) except as otherwise agreed by the Administrative Agent and such L/C Issuer,such Letter of Credit is in an initial amount less than $100,000; (D) except as otherwise agreed by such L/C Issuer, such Letter of Credit is to bedenominated in a currency other than U.S. Dollars or an Alternative Currency; or (E) any Revolving Credit Lender is at that time a Defaulting Lender, unlesssuch L/C Issuer has entered into arrangements, including the delivery of Cash Collateral,satisfactory to such L/C Issuer (in its sole discretion) with the Borrower or such Revolving CreditLender to eliminate 78
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such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to any requiredadjustment pursuant to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from theLetter of Credit then proposed to be issued and all other L/C Obligations as to which such L/CIssuer has actual or potential Fronting Exposure, as it may elect in its sole discretion. (iv) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not bepermitted at such time to issue such Letter of Credit in its amended form under the terms hereof. (v) No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A) suchL/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form underthe terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment tosuch Letter of Credit. (vi) Each L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect toany Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have allof the benefits and immunities (A) provided to the Administrative Agent in Article 9 and Section 10.4(c)hereof with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters ofCredit issued by it or proposed to be issued by it and the Issuer Documents pertaining to such Letters ofCredit as fully as if the term “Administrative Agent” as used in Article 9 and Section 10.4(c) hereofincluded such L/C Issuer with respect to such acts or omissions, and (B) as additionally provided hereinwith respect to the L/C Issuers; provided that to the extent an L/C Issuer is entitled to indemnification underSection 10.4(c) solely in connection with its role as an L/C Issuer, only the Revolving Credit Lenders shallbe required to indemnify such L/C Issuer in accordance with Section 10.4(c). (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters ofCredit. (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrowerdelivered to the applicable L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of CreditApplication, appropriately completed and signed by a Responsible Officer of the Borrower (provided that, if suchLetter of Credit Application is submitted through an Approved Borrower Portal, the foregoing signaturerequirement may be waived at the sole discretion of the Administrative Agent). Such Letter of CreditApplication must be received by the applicable L/C Issuer and the Administrative Agent not later than (x) in thecase of Letters of Credit denominated in U.S. Dollars, 12:00 p.m. at least three Business Days (or such other dateand time as the Administrative Agent and the applicable L/C Issuer may agree in a particular instance in their solediscretion) prior to the proposed issuance date or date of amendment, as the case may be and (y) in the case ofLetters of Credit denominated in an Alternative Currency, 12:00 p.m. at least five Business Days (or such other dateand time as the Administrative Agent and the applicable L/C Issuer may agree in a particular instance in their solediscretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a requestfor the issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonablysatisfactory to the applicable L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (whichshall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of thebeneficiary 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; (G) thepurpose and nature of the requested Letter of Credit; (H) the requested currency of the requested Letter of Credit(which shall be U.S. Dollars or an Alternative Currency); provided that if the currency is not specified, therequested currency of the requested Letter of Credit shall be deemed to be U.S. Dollars; and (I) such other mattersas the applicable L/C Issuer may reasonably require. In the case of a request for an amendment of 79
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any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonablysatisfactory to the applicable L/C Issuer: (A) the Letter of Credit to be amended; (B) the proposed date of issuanceof the amendment (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such othermatters as the applicable L/C Issuer may reasonably require. Additionally, the Borrower shall furnish to theapplicable L/C Issuer and the Administrative Agent such other documents and information pertaining to suchrequested Letter of Credit issuance or amendment, including any Issuer Documents, as the applicable L/C Issuer orthe Administrative Agent may reasonably require. (i) (ii) Promptly after receipt of any Letter of Credit Application, the applicable L/CIssuer will confirm with the Administrative Agent (in writing) that the Administrative Agent has received acopy of such Letter of Credit Application from the Borrower and, if not, the applicable L/C Issuer willprovide the Administrative Agent with a copy thereof. Unless the applicable L/C Issuer has received writtennotice from any Revolving Credit Lender, the Administrative Agent or any Loan Party, at least one BusinessDay prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one ormore applicable conditions contained in Article 4 hereof shall not then be satisfied, then, subject to theterms and conditions hereof, the applicable L/C Issuer shall, on the requested date, issue a Letter of Creditfor the account of the Borrower or enter into the applicable amendment, as the case may be, in each case inaccordance with the applicable L/C Issuer’s usual and customary business practices. Immediately upon theissuance of each Letter of Credit and each amendment increasing the amount of a Letter of Credit, eachRevolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,purchase from the applicable L/C Issuer a risk participation in such Letter of Credit in an amount equal tothe product of such Revolving Credit Lender’s Applicable Revolving Credit Percentage times the amount ofsuch Letter of Credit. (ii) (iii) If the Borrower so requests in any applicable Letter of Credit Application, theapplicable L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that hasautomatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that, unlessotherwise agreed to by the applicable L/C Issuer, any such Auto-Extension Letter of Credit must permit theapplicable L/C Issuer to prevent any such extension at least once in each twelve-month period (commencingwith the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not laterthan a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at thetime such Letter of Credit is issued. Unless otherwise directed by the applicable L/C Issuer, the Borrowershall not be required to make a specific request to the applicable L/C Issuer for any such extension. Once anAuto-Extension Letter of Credit has been issued, the Revolving Credit Lenders shall be deemed to haveauthorized (but may not require) the applicable L/C Issuer to permit the extension of such Letter of Credit atany time to an expiry date not later than the Letter of Credit Expiration Date unless such Letter of Credit isCash Collateralized at 105% of the face amount thereof in accordance with this Agreement; provided,however, that the applicable L/C Issuer shall not permit any such extension if (A) the applicable L/C Issuerhas determined that it would not be permitted, or would have no obligation at such time to issue such Letterof Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (i)or (ii) of Section 2.03(a) or otherwise), or (B) it has received notice (in writing) on or before the day that isseven days before the Non-Extension Notice Date (1) from the Administrative Agent that the RequiredRevolving Credit Lenders have elected not to permit such extension or (2) from the Administrative Agent,any Revolving Credit Lender or the Borrower that one or more of the applicable conditions specified inSection 4.02 is not then satisfied, and in each such case directing the applicable L/C Issuer not to permitsuch extension. 80
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(iii) (iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letterof Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable L/C Issuerwill also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter ofCredit or amendment. (c) Drawings and Reimbursements; Funding of Participations. (i) Upon receipt from the beneficiary of any Letter of Credit of a drawing made under,and in compliance with, such Letter of Credit, the applicable L/C Issuer shall notify the Borrower and theAdministrative Agent thereof. In the case of a Letter of Credit denominated in an Alternative Currency, theBorrower shall reimburse the applicable L/C Issuer in U.S. Dollars. In the case of any such reimbursementin U.S. Dollars of a drawing as of the applicable Valuation Date under a Letter of Credit denominated in anAlternative Currency, the applicable L/C Issuer shall notify the Borrower of the U.S. Dollar Equivalent ofthe amount of the drawing promptly following the determination thereof. Not later than 11:00 a.m. on thenext Business Day following any payment by the applicable L/C Issuer under a Letter of Credit (or on thesecond Business Day following any payment by the applicable L/C Issuer if such notice is delivered to theBorrower after 11:00 a.m. on the date of any such payment) (each such applicable date, an “Honor Date”),the Borrower shall reimburse the applicable L/C Issuer through the Administrative Agent in an amountequal to the amount of such drawing as provided in this Section 2.03(c). If the Borrower fails to soreimburse the applicable L/C Issuer by such time, the Administrative Agent shall promptly notify eachRevolving Credit Lender of the Honor Date, the amount of the unreimbursed drawing (in U.S. Dollars inthe case of a Letter of Credit denominated in U.S. Dollars, and expressed, in the case of a Letter of Creditdenominated in an Alternative Currency, in U.S. Dollars in the amount of the U.S. Dollar Equivalent thereof(the “Unreimbursed Amount”)), and the amount of such Revolving Credit Lender’s Applicable RevolvingCredit Percentage thereof. In such event, the Borrower shall be deemed to have requested a RevolvingCredit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to theUnreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for theprincipal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the RevolvingCredit Commitments and the conditions set forth in Section 4.02 (other than the delivery of a CommittedLoan Notice). (ii) Each Revolving Credit Lender shall upon any notice pursuant to Section 2.03(c)(i)make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose)for the account of the applicable L/C Issuer at the Administrative Agent’s Office in an amount equal to itsApplicable Revolving Credit Percentage of the Unreimbursed Amount not later than 12:00 p.m. on theBusiness Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions ofSection 2.03(c)(iii), each Revolving Credit Lender that so makes funds available shall be deemed to havemade a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds soreceived to the applicable L/C Issuer in U.S. Dollars. (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a RevolvingCredit Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 (other than thedelivery of a Committed Loan Notice) cannot be satisfied or for any other reason, the Borrower shall bedeemed to have incurred from the applicable L/C Issuer an L/C Borrowing in the amount of theUnreimbursed 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 81
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Credit Lender’s payment to the Administrative Agent for the account of the applicable L/C Issuer pursuantto Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing andshall constitute an L/C Advance from such Revolving Credit Lender in satisfaction of its participationobligation under this Section 2.03. (iv) Until each Revolving Credit Lender funds its Revolving Credit Loan or L/C Advancepursuant to this Section 2.03(c) to reimburse the applicable L/C Issuer for any amount drawn under anyLetter of Credit, interest in respect of such Revolving Credit Lender’s Applicable Revolving CreditPercentage of such amount shall be solely for the account of the applicable L/C Issuer. (v) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or L/CAdvances to reimburse the applicable L/C Issuer for amounts drawn under Letters of Credit issued by it, ascontemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by anycircumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lendermay have against the applicable L/C Issuer, the 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 ornot similar to any of the foregoing; provided, however, that each Revolving Credit Lender’s obligation tomake Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the conditions set forth inSection 4.02 (other than delivery by the Borrower of a Committed Loan Notice). No such making of an L/CAdvance shall relieve or otherwise impair the obligation of the Borrower to reimburse the applicable L/CIssuer for the amount of any payment made by the applicable L/C Issuer under any Letter of Credit,together with interest as provided herein. (vi) If any Revolving Credit Lender fails to make available to the Administrative Agentfor the account of the applicable L/C Issuer any amount required to be paid by such Revolving CreditLender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), the applicable L/C Issuer shall be entitled to recover from such Revolving Credit Lender (actingthrough the Administrative Agent), on demand, such amount with interest thereon for the period from thedate such payment is required to the date on which such payment is immediately available to the applicableL/C Issuer at a rate per annum equal to the greater of the Federal Funds Effective Rate and a ratedetermined by the applicable L/C Issuer in accordance with banking industry rules on interbankcompensation, plus any administrative, processing or similar fees customarily charged by the applicableL/C Issuer in connection with the foregoing. If such Revolving Credit Lender pays such amount (withinterest and fees as aforesaid), the amount so paid shall constitute such Revolving Credit Lender’sRevolving Credit Loan included in the relevant Revolving Credit Borrowing or L/C Advance in respect ofthe relevant L/C Borrowing, as the case may be. A certificate of the applicable L/C Issuer submitted to anyRevolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under thisSection 2.03(c)(vi) shall be conclusive absent manifest error. (d) Repayment of Participations. (i) At any time after the applicable L/C Issuer has made a payment under any Letter ofCredit and has received from any Revolving Credit Lender such Revolving Credit Lender’s L/C Advance inrespect of such payment in accordance with Section 2.03(c), if the Administrative Agent receives for theaccount of the applicable L/C Issuer any payment in respect of the related Unreimbursed Amount or interestthereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral 82
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applied thereto by the Administrative Agent), the Administrative Agent will promptly distribute to suchRevolving Credit Lender its Applicable Revolving Credit Percentage thereof in the same funds as thosereceived by the Administrative Agent. (ii) If any payment received by the Administrative Agent for the account of theapplicable L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of thecircumstances described in Section 10.05 (including pursuant to any settlement entered into by theapplicable L/C Issuer in its discretion), each Revolving Credit Lender shall pay to the Administrative Agentfor the account of the applicable L/C Issuer its Applicable Revolving Credit Percentage thereof on demandof the Administrative Agent, plus interest thereon from the date of such demand to the date such amount isreturned by such Revolving Credit Lender, at a rate per annum equal to the Federal Funds Effective Ratefrom time to time in effect. The obligations of the Revolving Credit Lenders under this clause shall survivethe payment in full of the Obligations, the termination of the Commitments and the termination of thisAgreement. (e) Obligations Absolute. The obligation of the Borrower to reimburse the applicable L/C Issuerfor each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional andirrevocable, 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 anyother Loan Document; (ii) the existence of any claim, counterclaim, setoff, defense or other right that theBorrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter ofCredit (or any Person for whom any such beneficiary or any such transferee may be acting), the applicableL/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplatedhereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelatedtransaction; (iii) any draft, demand, certificate or other document presented under such Letter ofCredit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein beinguntrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any documentrequired in order to make a drawing under such Letter of Credit; (iv) any payment by the applicable L/C Issuer under such Letter of Credit againstpresentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; orany payment made by the applicable L/C Issuer under such Letter of Credit to any Person purporting to be atrustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or otherrepresentative of or successor to any beneficiary or any transferee of such Letter of Credit, including anyarising 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 relevantAlternative Currency to the Borrower 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 theforegoing, including any other circumstance that might otherwise 83
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constitute a defense available to, or a discharge of, the Borrower or any of its Subsidiaries. The 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 noncompliance with the Borrower’s instructions or other irregularity, the Borrower will promptly notify the applicable L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the applicable L/C Issuer and its correspondents unless such notice is given as aforesaid or such claim arises from the applicable L/C Issuer’s gross negligence or willful misconduct (as determined by a final non-appealable order of a court of competent jurisdiction). (f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any drawing under aLetter of Credit, the applicable L/C Issuer shall not have any responsibility to obtain any document (other than anysight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to thevalidity or accuracy of any such document or the authority of the Person executing or delivering any suchdocument. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor anycorrespondent, participant or assignee of any L/C Issuer shall be liable to any Lender for (i) any action taken oromitted in connection herewith at the request or with the approval of the Revolving Credit Lenders or the RequiredRevolving Credit Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence orwillful misconduct (as determined by a final non-appealable order of a court of competent jurisdiction); or (iii) thedue execution, effectiveness, validity or enforceability of any document or instrument related to any Letter ofCredit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary ortransferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to,and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary ortransferee at law or under any other agreement. None of the L/C Issuers, the Administrative Agent, any of theirrespective Related Parties nor any correspondent, participant or assignee of any L/C Issuer shall be liable orresponsible for any of the matters described in clauses (i) through (vi) of Section 2.03(e); provided, however, thatanything in such clauses to the contrary notwithstanding, the Borrower may have a claim against an L/C Issuer, andan L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed toconsequential or exemplary, damages suffered by the Borrower which are determined by a final non-appealableorder of a court of competent jurisdiction to have been caused by such L/C Issuer’s willful misconduct or grossnegligence or such L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by thebeneficiary 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, any L/C Issuer may accept documents that appear on their faceto be in order, without responsibility for further investigation, regardless of any notice or information to thecontrary, and the L/C Issuers shall not be responsible for the validity or sufficiency of any instrument transferringor assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceedsthereof, in whole or in part, which may prove to be invalid or ineffective for any reason. (g) Applicability of ISP/URDG 758. Unless otherwise expressly agreed by the applicable L/CIssuer and the Borrower, (i) when a Letter of Credit (other than a Bank Guarantee) is issued, the rules of the ISPshall apply to each Letter of Credit and (ii) when a Bank Guarantee is issued, the rules of the Uniform Rules forDemand Guarantees (URDG) 2010 Revision, ICC Publication No. 758 (“URDG 758”) shall apply to each BankGuarantee. 84
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(h) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the account ofeach Revolving Credit Lender in accordance with its Applicable Revolving Credit Percentage of the applicableRevolving Credit Facility, in U.S. Dollars, a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter ofCredit equal to the Applicable Rate of the applicable Revolving Credit Facility times the U.S. Dollar Equivalentdetermined as of the last Business Day of each March, June, September and December of the daily amountavailable to be drawn under such Letter of Credit; provided that any Letter of Credit Fees otherwise payable for theaccount of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has notprovided Cash Collateral satisfactory to the applicable L/C Issuer shall be payable, to the maximum extentpermitted by applicable Law, to the other Revolving Credit Lenders in accordance with the upward adjustments intheir respective Applicable Percentages allocable to such Letter of Credit pursuant to Section 2.16(a)(iv), with thebalance of such fee, if any, payable to the applicable L/C Issuer for its own account. For purposes of computing thedaily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall bedetermined in accordance with Section 1.06. Letter of Credit Fees shall be (i) due and payable on the last BusinessDay of each March, June, September and December, commencing with the first such date to occur after theissuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii)computed on a quarterly basis in arrears. If there is any change in the Applicable Rate during any quarter, the dailyamount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rateseparately for each period during such quarter that such Applicable Rate was in effect. (i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. TheBorrower shall pay directly to the applicable L/C Issuer for its own account, in U.S. Dollars, a fronting fee withrespect to each Letter of Credit issued by such L/C Issuer, at a rate per annum of 0.125%, computed on the U.S.Dollar Equivalent determined as of the last Business Day of each March, June, September and December of thedaily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such fronting feeshall be due and payable on the last Business Day of each March, June, September and December in respect of themost recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with thefirst such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date andthereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter ofCredit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. In addition, theBorrower shall pay directly to the applicable L/C Issuer for its own account the customary issuance, presentation,amendment and other processing fees, and other standard costs and charges, of such L/C Issuer relating to letters ofcredit as from time to time in effect. Such customary fees and standard costs and charges are due and payable ondemand and are nonrefundable. (j) Conflict with Issuer Documents. In the event of any conflict or inconsistency between theterms hereof and the terms of any Issuer Document, the terms hereof shall control. To the extent any defaults,representations, or covenants contained in any Issuer Documents are more restrictive than the Events of Default,representations, or covenants contained herein, the Events of Default, representations and covenants herein shallcontrol. (k) Provisions Related to Letters of Credit in respect of Other Revolving Commitments. If theLetter of Credit Expiration Date in respect of any Class of Revolving Credit Commitments occurs prior to theexpiry date of any Letter of Credit, then (i) if consented to by the L/C Issuer which issued such Letter of Credit, ifone or more other Classes of Revolving Credit Commitments in respect of which the Letter of Credit ExpirationDate shall not have so occurred are then in effect, such Letters of Credit for which the applicable L/C Issuer hasconsented shall automatically be deemed to have been issued (including for purposes of the obligations of theRevolving Credit Lenders to purchase participations therein and to make 85
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Revolving Credit Loans and payments in respect thereof pursuant to Sections 2.03(c) and 2.03(d)) under (andratably participated in by Lenders pursuant to) the Revolving Credit Commitments in respect of such non-terminating Classes up to an aggregate amount not to exceed the aggregate amount of the unutilized RevolvingCredit Commitments thereunder at such time and (ii) to the extent not reallocated pursuant to the immediatelypreceding clause (i), the Borrower shall Cash Collateralize any such Letter of Credit in accordance with the termshereof. Upon the maturity date of any Class of Revolving Credit Commitments, the Letter of Credit Sublimit maybe reduced as agreed between the L/C Issuers and the Borrower, without the consent of any other Person. (l) Additional L/C Issuers. The Borrower may, at any time and from time to time, designate oneor more additional Revolving Credit Lenders or Affiliates of Revolving Credit Lenders to act as an L/C Issuerunder the terms of this Agreement, with the consent of each of the Administrative Agent (which consent shall notbe unreasonably withheld) and such Revolving Credit Lender(s) or Affiliate thereof. Any Revolving Credit Lenderor Affiliate thereof designated as an L/C Issuer pursuant to this Section 2.03(l) shall be deemed to be the L/C Issuerwith respect to Letters of Credit issued or to be issued by such Revolving Credit Lender or Affiliate thereof, and allreferences herein and in the other Loan Documents to the term “L/C Issuer” shall, with respect to such Letters ofCredit, be deemed to refer to such Revolving Credit Lender or Affiliate thereof in its capacity as L/C Issuer thereof,as the context shall require. (m) Reporting. Not later than the third Business Day following the last day of each calendarmonth (or at such other intervals as the Administrative Agent and the applicable L/C Issuer shall agree), each L/CIssuer shall provide to the Administrative Agent a schedule of the Letters of Credit issued by it, in form andsubstance reasonably satisfactory to the Administrative Agent, showing the date of issuance of each Letter ofCredit, the account party, the original face amount (if any), the expiration date, and the reference number of anyLetter of Credit outstanding at any time during such month, and showing the aggregate amount (if any) paid orpayable by the Borrower to such L/C Issuer during such month. Section 2.04[Reserved] . Section 2.05Prepayments . (a) Optional. The Borrower may, upon notice in the form of a Prepayment Notice delivered tothe Administrative Agent (including by delivery through the Approved Borrower Portal, if arrangements forsuch transmission have been approved by the Administrative Agent), at any time or from time to timevoluntarily prepay Term Loans or Revolving Credit Loans in whole or in part without premium or penalty (otherthan, (x) in the case of any Term SOFR Loan or Eurodollar Rate Loan, any amounts required pursuant to Section3.05 and (y) in the case of any Term Loans, any premium contained in the applicable Joinder Agreement orRefinancing Amendment); provided that (A) such notice must be received by the Administrative Agent not laterthan (1) 12:00 p.m. three Business Days prior to any date of prepayment of Term SOFR Loans or Eurodollar RateLoans , (2) 12:00 p.m. five Business Days prior to any date of prepayment of RFR Loans and (3) 11:00 a.m. on thedate of any prepayment of Base Rate Loans; (B) any prepayment of Term SOFR Loans, Eurodollar Rate Loans andRFR Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and(C) any prepayment of Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of$500,000 in excess thereof or, in each case, if less, 86
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the entire principal amount thereof then outstanding. Each such notice shall specify (i) the date and amount of suchprepayment and (ii) the Type(s) of Loans to be prepaid and, if Term SOFR Loans or Eurodollar Rate Loans are tobe prepaid, the Interest Period(s) of such Loans, and may be conditioned upon the effectiveness of other creditfacilities, indentures or similar agreements or other transactions of any kind, and may be revoked and/or rescindedby the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such conditionis not satisfied or if the Borrower determines in its reasonable discretion that any of such conditions will not besatisfied. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Applicable Percentage in respect of the relevant Facility). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any voluntary prepayment of a Loan pursuant to this Section 2.05(a)(i) shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts if required pursuant to Section 3.05. Each such prepayment of any outstanding Term Loans pursuant to this Section 2.05(a)(i) shall be applied as between Facilities as directed by the Borrower and, within any given Facility, shall be applied as directed by the Borrower to the installments thereof (or, if no such direction is provided, in direct order of maturity). Subject to Section 2.16, all payments made pursuant to this Section 2.05(a)(i) shall be applied on a pro rata basis to each Lender holding Loans of the applicable Facility being prepaid in accordance with the principal amount of the applicable Term Loans held thereby. (b) Mandatory. (i) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiariesof any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant toSection 7.03 (except Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay (or CashCollateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100% of thegross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any suchIndebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs andexpenses incurred or reasonably anticipated to be incurred within 90 days thereof in connection therewith,within one Business Day following receipt thereof by the Borrower or such Restricted Subsidiary (suchprepayments (or Cash Collateralization) to be applied as set forth in clauses (iii) and (v) below). (ii) [Reserved]. (iii) Subject to the next sentence, each prepayment (or Cash Collateralization, asapplicable) of Pro Rata Obligations pursuant to this Section 2.05(b) shall be applied, first, to the TermLoans held by all Term Lenders in accordance with their Applicable Percentages (allocated pro rata asamong the Term Loans and to each Term Lender on a pro rata basis in accordance with the principal amountof the applicable Term Loans held thereby and to scheduled amortization payments in direct order ofmaturity), second, any excess after the application of such proceeds in accordance with clause first above, tothe Revolving Credit Facility in the manner set forth in clause (vi) of this Section 2.05(b) and third, anyexcess after the application of such proceeds in accordance with clauses first and second above may beretained by the Borrower. Except with respect to Term Loans incurred in connection with any RefinancingAmendment or 87
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any Joinder Agreement (which, in each case, may be prepaid on a less than pro rata basis if expresslyprovided for in such Refinancing Amendment or Joinder Agreement), each prepayment pursuant to thisSection 2.05(b) shall be applied ratably to each Class of Loans then outstanding entitled to paymentpursuant to the prior sentence (provided that any prepayment of Loans with the Net Proceeds of CreditAgreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt).Any prepayment of a Loan pursuant to this Section 2.05(b) shall be accompanied by all accrued interest onthe amount prepaid, together with any additional amounts required pursuant to Section 3.05. (iv) If for any reason the Total Revolving Credit Outstandings at any time exceed theRevolving Credit Commitments at such time (including, for the avoidance of doubt, as a result of thetermination of any Class of Commitments on the Maturity Date with respect thereto), the Borrower shallimmediately prepay Revolving Credit Loans and L/C Borrowings and/or Cash Collateralize the L/CObligations (other than the L/C Borrowings) (in an aggregate amount equal to 105% of the face amountthereof) in an aggregate amount sufficient to reduce the Total Revolving Credit Outstandings to theaggregate Revolving Credit Commitments. If for any reason the Outstanding Amount of L/C Obligations atany time exceeds the Letter of Credit Sublimit at such time, the Borrower shall immediately prepay L/CBorrowings and/or Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce theOutstanding Amount of L/C Obligations to the Letter of Credit Sublimit. (v) If the Old BRBR Merger has not become effective under the relevant provisions ofthe General Corporation Law of the State of Delaware on or before 5:00 p.m. on March 14, 2022, theBorrower shall prepay the aggregate principal amount of the Revolving Credit Loans in full. (vi) Prepayments of the Revolving Credit Facilities made pursuant to this Section 2.05(b),first, shall be applied ratably to the L/C Borrowings, second, shall be applied ratably to the outstandingRevolving Credit Loans held by all Revolving Credit Lenders in accordance with their ApplicableRevolving Credit Percentages, and, third, shall be used to Cash Collateralize the remaining L/C Obligations.Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as CashCollateral shall be applied (without any further action by or notice to or from the Borrower or any otherLoan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.Prepayments of the Revolving Credit Facilities made pursuant to this Section 2.05(b) shall be appliedratably to the outstanding Revolving Credit Loans. Amounts to be applied pursuant to this Section 2.05(b)to the mandatory prepayment of Term Loans and Revolving Credit Loans shall be applied, as applicable,first to reduce outstanding Base Rate Loans and any amounts remaining after such application shall beapplied as directed by the Borrower to prepay Term SOFR Loans, Eurodollar Rate Loans or RFR Loans. (vii) In the event that there are any Term Loans outstanding, each Term Lender may elect,by notice to the Administrative Agent at or prior to the time and in the manner specified by theAdministrative Agent, prior to any prepayment of Term Loans required to be made by the Borrowerpursuant to any mandatory prepayment provisions relating to asset sale proceeds, excess cash flow,insurance proceeds or condemnation proceeds set forth in any Joinder Agreement pursuant to which anyIncremental Term Loan Commitments are established or any Incremental Term Loans are made), to declineall (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the“Declined Proceeds”). Any Term Lender declining such prepayment shall give written notice thereof to theAdministrative Agent by 11:00 a.m. no later than one 88
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(1) Business Day after the date of such notice from the Administrative Agent. If a Lender fails to deliver anotice of election declining receipt of its Applicable Percentage of such mandatory prepayment to theAdministrative Agent within the time frame specified above, any such failure will be deemed to constitutean acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory prepayment ofTerm Loans. Section 2.06Termination or Reduction of Commitments . (a) Optional. The Borrower may, upon notice to the Administrative Agent, terminate theany Revolving Credit FacilitiesFacility (subject to the terms of Section 2.17) or the Letter of Credit Sublimit, or from time to time permanently reduce the Revolving Credit Commitments of any Class (subject to the terms of Section 2.17) or the Letter of Credit Sublimit; provided that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five Business Days prior to the date of reduction or not later than 11:00 a.m. three Business Days prior to the date of termination, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii) the Borrower shall not reduce or terminate (A) the Revolving Credit Facilities if, after giving effect thereto and to any concurrent prepayments of the Revolving Credit Facilities hereunder, the Total Revolving Credit Outstandings would exceed the Revolving Credit Facilities, (B) any Revolving Credit Facility if, after giving effect thereto and to any concurrent prepayments of such Revolving Credit Facility hereunder, the Total Revolving Credit Outstandings in respect of such Revolving Credit Facility would exceed such Revolving Credit Facility or (C) the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of L/C Obligations would exceed the Letter of Credit Sublimit. (a) (b) Mandatory. If after giving effect to any reduction or termination of Revolving CreditCommitments under this Section 2.06, the Letter of Credit Sublimit exceeds the Revolving Credit Facility at suchtime, the Letter of Credit Sublimit shall be automatically reduced by the amount of such excess. (b) (c) Application of Commitment Reductions; Payment of Fees. The Administrative Agent willpromptly notify the Lenders of any reduction or termination of the Letter of Credit Sublimit or the RevolvingCredit Commitments under this Section 2.06. Upon any reduction of any Revolving Credit Commitments, theRevolving Credit Commitments of each applicable Revolving Credit Lender shall be reduced by such RevolvingCredit Lender’s Applicable Revolving Credit Percentage of such reduction amount. All fees in respect of anyRevolving Credit Facility accrued until the effective date of any termination of such Revolving CreditCommitments shall be paid on the effective date of such termination. Section 2.07Repayment of Loans . (a) Incremental Term Loans. In the event any Incremental Term Loans or Refinancing TermLoans are made, such Incremental Term Loans or Refinancing Term Loans shall be repaid in the amounts and datesset forth in the applicable Joinder Agreement or Refinancing Amendment with respect thereto and on the applicableMaturity Date thereof. All payments made pursuant to this Section 2.07(a) shall be applied on a pro rata basis toeach Term Lender holding Term Loans of the applicable Facility or Class being repaid. 89
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(b) Revolving Credit Loans. The Borrower shall repay to the Administrative Agent for theratable account of the Appropriate Lenders on the applicable Maturity Date for the Revolving Credit Facilities of agiven Class the aggregate principal amount of all of its Revolving Credit Loans of such Class outstanding on suchdate. Section 2.08Interest . (a) Subject to the provisions of Section 2.08(b), (i) each Eurodollar Rate Loan under a Facilityshall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal tothe Adjusted Eurodollar Rate for such Interest Period plus the Applicable Rate for Eurodollar Rate Loans undersuch Facility, (ii) each Base Rate Loan under a Facility shall bear interest on the outstanding principal amountthereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate forBase Rate Loans under such Facility, (iii) each RFR Loan under a Facility shall bear interest on the outstandingprincipal amount thereof from the applicable borrowing date at a rate per annum equal to the Adjusted DailySimple RFR plus the Applicable Rate for RFR Loans under such Facility and (iv) each Term SOFR Loan under aFacility shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annumequal to the Adjusted Term SOFR Rate for such Interest Period plus the Applicable Rate for Term SOFR Loansunder such Facility. (b) (i) Automatically, upon the occurrence and while any Event of Default as described inSection 8.01(a), 8.01(f) or 8.01(g) exists, the Borrower shall pay interest on all overdue amounts then outstandinghereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extentpermitted by applicable Laws. (i) (ii) Accrued and unpaid interest on past due amounts (including interest on past dueinterest) shall be due and payable upon demand. (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Dateapplicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable inaccordance with the terms hereof before and after judgment, and before and after the commencement of anyproceeding under any Debtor Relief Law. Section 2.09Fees . In addition to certain fees described in Sections 2.03(h) and (i): (a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the account ofeach Revolving Credit Lender in accordance with its Applicable Percentage of the applicable Revolving CreditFacility, a commitment fee in U.S. Dollars equal to the Commitment Fee Rate with respect to the applicableRevolving Credit Facility under which such Revolving Credit Lender has a Revolving Credit Commitment timesthe actual daily amount by which the aggregate amount of the Revolving Credit Lenders’ Revolving CreditCommitments exceeds the sum of (i) the Outstanding Amount of Revolving Credit Loans and (ii) the OutstandingAmount of L/C Obligations, subject to adjustment as provided in Section 2.16. The commitment fee under the2025 Revolving Credit Commitments shall accrue at all times from the ClosingFirst Amendment Effective Dateuntil the applicable Maturity Date for the applicable2025 Revolving Credit Commitments, including at any timeduring which one or more of the conditions in Section 4.02 is not met, and shall be due and payable quarterly in 90
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arrears onfifteen (15) days after the last Business Day of each March, June, September and December,commencing with the first such date to occur following the ClosingFirst Amendment Effective Date and on theapplicable Maturity Date for the applicable Revolving Credit Commitments. The commitment fee shall becalculated quarterly in arrears. (b) Administrative Agent Fee. The Borrower agrees to pay to the Administrative Agent, for itsown account, the fees set forth in the Fee Letter and such other fees payable in the amounts and at the timesseparately agreed upon between the Borrower and the Administrative Agent. (c) Other Fees. The Borrower agrees to pay on the Closing Date to each Lender party to thisAgreement as a Lender on the Closing Date, as fee compensation for the funding of such Lender’s funded andunfunded Revolving Credit Commitments, a closing fee in an amount separately agreed to by the Borrower and theArrangers for the benefit of such Lenders on the Closing Date, payable to such Lender from the proceeds of theRevolving Credit Loans as and when funded on the Closing Date. Such closing fee shall be in all respects fullyearned, due and payable on the Closing Date and non-refundable and non-creditable thereafter. Section 2.10Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate . (a) All computations of interest for Base Rate Loans based on the Prime Rate shall be made onthe basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of feesand interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees orinterest, as applicable, being paid than if computed on the basis of a 365-day year) or, in the case of interest inrespect of Revolving Credit Loans denominated in Alternative Currencies, the applicable market practice for suchAlternative Currency, which shall be either on the basis of a year of a 365 or 366 days or a 360-day year (it beingunderstood that, in the case of interest computed by reference to the Daily Simple RFR, such interest shall becomputed on the basis of a year of 365 days (or 366 days in a leap year)). Interest shall accrue on each Loan for theday on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which theLoan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall,notwithstanding Section 2.12(a), bear interest for one day. Each determination by the Administrative Agent of aninterest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error. (b) If, as a result of any restatement of or other adjustment to the financial statements of theBorrower or for any other reason, the Borrower, the Administrative Agent or the Required Lenders determine that(i) the Secured Net Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii) aproper calculation of the Secured Net Leverage Ratio would have resulted in higher pricing for such period, theBorrower shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of theapplicable Lenders or the applicable L/C Issuer, as the case may be, promptly on demand by the AdministrativeAgent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrowerunder the Bankruptcy Code of the United States, automatically and without further action by the AdministrativeAgent, any Lender or any L/C Issuer), an amount equal to the excess of the amount of interest and fees that shouldhave been paid for such period over the amount of interest and fees actually paid for such period. This paragraphshall not limit the rights of the Administrative Agent, any Lender or any L/C Issuer, as the case may be, underSections 2.03(h), 2.08(b), 2.09(a) or under Article 8. The Borrower’s obligations under this Section 2.10(b) shallsurvive the termination of the Aggregate 91
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Commitments and the repayment of all other Obligations hereunder for 90 days after such termination andrepayment. Section 2.11 Evidence of Debt . (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto. (a) (b) In addition to the accounts and records referred to in Section 2.11(a), each RevolvingCredit Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or recordsevidencing the purchases and sales by such Revolving Credit Lender of participations in Letters of Credit. In theevent of any conflict between the accounts and records maintained by the Administrative Agent and the accountsand records of any Revolving Credit Lender in respect of such matters, the accounts and records of theAdministrative Agent shall control in the absence of manifest error. Section 2.12Payments Generally; Administrative Agent’s Clawback . (a) General. All payments to be made by the Borrower shall be made without condition ordeduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein andexcept with respect to principal and interest on Loans and L/C Obligations denominated in an Alternative Currency,all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of therespective Lenders to which such payment is owed, at the Administrative Agent’s Office in U.S. Dollars and inSame Day Funds not later than 12:00 p.m. on the date specified herein. Except as otherwise expressly providedherein, all payments by the Borrower hereunder with respect to principal and interest on Loans and L/C Obligationsdenominated in an Alternative Currency shall be made to the Administrative Agent, for the account of therespective Lenders to which such payment is owed, at the Administrative Agent’s Office in such AlternativeCurrency and in Same Day Funds not later than the Applicable Time specified by the Administrative Agent on thedates specified herein. If, for any reason, the Borrower is prohibited by any Law from making any requiredpayment hereunder in an Alternative Currency, the Borrower shall make such payment in U.S. Dollars in an amountequal to the U.S. Dollar Equivalent of the amount due in such Alternative Currency as of the date of payment. TheAdministrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable shareas provided herein) of all payments 92
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and prepayments of principal and interest due hereunder, together with all other amounts due thereto, including allfees payable with respect thereto, in like funds as received by wire transfer to such Lender’s Lending Office. Allpayments received by the Administrative Agent after 2:00 p.m., in the case of payments in U.S. Dollars, or after theApplicable Time specified by the Administrative Agent, in the case of payments in an Alternative Currency, shall ineach case be deemed received on the next succeeding Business Day and any applicable interest or fee shallcontinue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day,payment shall be made on the next following Business Day, and such extension of time shall be reflected incomputing interest or fees, as the case may be. (b) Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agentshall have received notice from a Lender prior to the proposed date of any Borrowing of Term SOFR Loans,Eurodollar Rate Loans or RFR Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 p.m. onthe date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’sshare of such Borrowing, the Administrative Agent may assume that such Lender has made such share available onsuch date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender hasmade such share available in accordance with and at the time required by Section 2.02) and may, in reliance uponsuch assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in factmade its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender andthe Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amountin Same Day Funds with interest thereon, for each day from and including the date such amount is made availableto the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a paymentto be made by such Lender, the greater of the Federal Funds Effective Rate and a rate determined by theAdministrative Agent in accordance with banking industry rules on interbank compensation, plus anyadministrative, processing or similar fees customarily charged by the Administrative Agent in connection with theforegoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base RateLoans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or anoverlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paidby the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the AdministrativeAgent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment bythe Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failedto make such payment to the Administrative Agent. (c) Payments by Borrower; Presumptions by Administrative Agent. Unless the AdministrativeAgent shall have received notice from the Borrower prior to the time at which any payment is due to theAdministrative Agent for the account of the Lenders or the applicable L/C Issuer hereunder that the Borrower willnot make such payment, the Administrative Agent may assume that the Borrower has made such payment on suchdate in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders theamount due. In such event, if the Borrower has not in fact made such payment, then each of the AppropriateLenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed tosuch Appropriate Lender, in Same Day Funds with interest thereon, for each day from and including the date suchamount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of theFederal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with bankingindustry rules on interbank compensation. A notice of the Administrative Agent to any Lender, any L/C Issuer or the Borrower with respect to any amount owing under this subsection (c) shall be conclusive, absent manifest error. 93
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(d) Failure to Satisfy Conditions Precedent. If any Lender makes available to the AdministrativeAgent funds for any Loan to be made by such Lender as provided in this Article 2, and such funds are not madeavailable to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension setforth in Article 4 or in the applicable Joinder Agreement or Refinancing Amendment are not satisfied or waived inaccordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds asreceived from such Lender) to such Lender, without interest. (e) Obligations of Lenders Several. The obligations of the Lenders hereunder to make TermLoans and Revolving Credit Loans, to fund participations in Letters of Credit and to make payments pursuant toSection 10.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any suchparticipation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve anyother Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for thefailure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section10.04(c). (f) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the fundsfor any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtainedor will obtain the funds for any Loan in any particular place or manner. (g) Insufficient Funds. If at any time insufficient funds are received by and available to theAdministrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees then due hereunder,such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among theparties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second,toward payment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled thereto inaccordance with the amounts of principal and L/C Borrowings then due to such parties. Section 2.13Sharing of Payments by Lenders . If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any of the Facilities due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (b) Obligations in respect of any of the Facilities owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time) of payment on account of the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and subparticipations in L/C Obligations of the other 94
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Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of Obligations in respect of the Facilities then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be, provided that: (i) if any such participations or subparticipations are purchased and all or any portion ofthe payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded andthe purchase price restored to the extent of such recovery, without interest; and (ii) the provisions of this Section shall not be construed to apply to (A) any paymentmade by or on behalf of the Borrower pursuant to and in accordance with the express terms of thisAgreement (including the application of funds arising from the existence of a Defaulting Lender), (B) theapplication of Cash Collateral provided for in Section 2.15, or (C) any payment obtained by a Lender asconsideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/CObligations to any assignee or participant, other than to the Borrower or any Restricted Subsidiary orAffiliate thereof (as to which the provisions of this Section shall apply unless such purchase is made by theBorrower pursuant to Section 10.06(b)(vii)). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. Section 2.14Incremental Facilities . (a) The Borrower may by written notice to the Administrative Agent elect to increase theexisting Revolving Credit Commitments of any Class (any such increase, the “Incremental Revolving CreditCommitments”) and/or incur one or more new term loan commitments and/or increase the commitments of anyClass of Term Loans (the “Incremental Term Loan Commitments”) by an amount (1) not to exceed in theaggregate, at the time of incurrence, the Incremental Available Amount referred to in clauses (a), (b) and (c)(i) ofthe definition thereof and (2) not less than, individually, $25,000,000. (b) Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on whichthe Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term LoanCommitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days after the dateon which such notice is delivered to the Administrative Agent (or such shorter period of time as may be agreed toby the Administrative Agent in its sole discretion); and (ii) the identity of each Lender or other Person, which mustbe an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender,”as applicable) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments orIncremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations. Any Lenderapproached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental TermLoan Commitments, as applicable, may elect or decline, in its sole discretion, to provide an Incremental RevolvingCredit Commitment or Incremental Term Loan Commitment. Any Incremental Term Loan Commitments effectedthrough the establishment of one or more term 95
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loan commitments made on an Increased Amount Date that are not fungible for United States federal income taxpurposes with an existing Class of Term Loans shall be designated a separate Class of Incremental Term LoanCommitments for all purposes of this Agreement. Notwithstanding the foregoing, any Incremental Term Loans maybe treated as part of the same Class as any other Incremental Term Loans if such Incremental Term Loans haveidentical terms (other than effective yield) and are fungible for United States federal income tax purposes with suchother Incremental Term Loans. (c) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’snotice of each Increased Amount Date and in respect thereof (i) the Incremental Revolving Credit Commitmentsand the Incremental Revolving Loan Lenders or Incremental Term Loan Commitments and the Incremental TermLoan Lenders, as applicable and (ii) in the case of each notice to any applicable Revolving Credit Lender of anysuch given Class, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans of such Class,in each case subject to the assignments contemplated by this Section. (d) Such Incremental Revolving Credit Commitments or Incremental Term Loan Commitmentsshall become effective as of such Increased Amount Date; provided that: (i) (x) subject, solely in the case of Incremental Term Loans, to Section 1.09(c), noEvent of Default shall exist on such Increased Amount Date before or after giving effect to suchIncremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable and theextensions of credit to be made thereunder on such date; provided that this clause (i)(x) may be waived orlimited as agreed in the Joinder Agreement between the Borrower and the applicable Incremental TermLoan Lenders; and (y) the representations and warranties of the Borrower and each other Loan Partycontained in Article 5 hereof shall be true and correct in all material respects (except that any representationand warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be trueand correct (after giving effect to any qualification therein) on and as of such date, except in each case tothe extent that such representations and warranties specifically refer to an earlier date, in which case theyshall be true and correct in all material respects as of such earlier date except that any representation andwarranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true andcorrect (after giving effect to any qualification therein) on and as of such date); provided that, in the case ofIncremental Term Loans incurred to finance a Permitted Acquisition or other Investment in the nature of anacquisition, this clause (i)(y) shall be limited to Sections 5.01(a), 5.01(b), 5.02(a), 5.13, 5.17, 5.18, 5.19(other than the first or second sentence thereof) and 5.20; (ii) the Incremental Revolving Credit Commitments or Incremental Term LoanCommitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed anddelivered by the Borrower, the Incremental Revolving Loan Lender(s) or Incremental Term Loan Lender(s),as applicable, and the Administrative Agent, each of which shall be recorded in the Register (and eachIncremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to therequirements set forth in Section 3.01); (iii) the Incremental Facilities shall be Guaranteed by the Guarantors, rank pari passu inright of security with the other Facilities and shall not be secured by any property or assets other than theCollateral; (iv) all fees and reasonable out-of-pocket expenses owing to the Administrative Agentand the Lenders (other than a Defaulting Lender) in respect of the 96
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Incremental Revolving Credit Commitments and Incremental Term Loan Commitments shall have beenpaid; and (v) the Borrower shall deliver or cause to be delivered legal opinions, officer’scertificates and such other documents reasonably requested by the Administrative Agent in connection withany such transaction. (e) On any Increased Amount Date on which Incremental Revolving Credit Commitments areeffected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Revolving CreditLenders of the Class being so increased shall assign to each of the Incremental Revolving Loan Lenders, and eachof the Incremental Revolving Loan Lenders shall purchase from each of the existing Revolving Credit Lenders ofthe Class being so increased, at the principal amount thereof (together with accrued interest), such interests in theRevolving Credit Loans of the Class being so increased and participations in Letters of Credit outstanding on suchIncreased Amount Date as shall be necessary in order that, after giving effect to all such assignments andpurchases, such Revolving Credit Loans and participations in Letters of Credit will be held by existing RevolvingCredit Lenders of such Class and Incremental Revolving Loan Lenders ratably in accordance with their RevolvingCredit Commitments of the Class being so increased after giving effect to the addition of such IncrementalRevolving Credit Commitments to the Revolving Credit Commitments of such Class, (ii) each IncrementalRevolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment of the Classbeing so increased and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for allpurposes, a Revolving Credit Loan of the Class being so increased and (iii) each Incremental Revolving LoanLender shall become a Lender with respect to the Incremental Revolving Credit Commitment and all mattersrelating thereto. (f) On any Increased Amount Date on which any Incremental Term Loan Commitments of anyClass (or any Incremental Term Loan Commitments increasing any existing Term Loans) are effective, subject tothe satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of such Class orincrease shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its IncrementalTerm Loan Commitment of such Class or increase and (ii) each Incremental Term Loan Lender of such Class orincrease shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Class orincrease and the Incremental Term Loans of such Class or increase made pursuant thereto. (g) The terms (including pricing, “most favored nations” provisions, premiums, fees, rate floors,optional prepayment provisions, and/or mandatory prepayment provisions relating to excess cash flow, asset saleproceeds and condemnation proceeds) and conditions of the Incremental Term Loans and Incremental Term LoanCommitments shall be, except as otherwise explicitly set forth herein, as agreed in the Joinder Agreement betweenthe Borrower, the applicable Incremental Term Loan Lenders providing such Incremental Term Loan Commitmentsand the Administrative Agent; provided that (i) other than in the case of customary bridge loans, the terms of suchIndebtedness shall not be more restrictive, taken as a whole, to the Borrower and the other Loan Parties than thoseset forth in this Agreement prior to the execution of such Joinder Agreement unless (x) such terms apply only afterthe Latest Maturity Date at the time such Indebtedness is established or (y) this Agreement is amended so that suchterms are also applicable for the benefit of any Lenders under any then-existing Facilities, (ii) other than in the caseof customary bridge loans, the Weighted Average Life to Maturity of all Incremental Term Loans of any such Classshall be no shorter than (x) if there are no Term Loans outstanding at such time, 36 months and (y) if there are TermLoans outstanding at such time, the Weighted Average Life to Maturity of any other Term Loans at the time of theincurrence of such Incremental Term Loans, (iii) other than in the case of customary bridge 97
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loans, the applicable Incremental Term Loan Maturity Date of each Class shall be no earlier than the LatestMaturity Date at the time of the incurrence of such Incremental Term Loans, (iv) the pricing of each Class ofIncremental Term Loans may be subject to “most favored nations” provisions if and to the extent set forth in theJoinder Agreement for such Class and (v) such Indebtedness may contain mandatory prepayment or exchangeprovisions and may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro ratabasis) in any mandatory prepayments of Term Loans hereunder, as specified in the applicable Joinder Agreement. (h) The terms and provisions of the Incremental Revolving Loans and Incremental RevolvingCredit Commitments shall be identical to the other Revolving Credit Loans of the Class being so increased and theRevolving Credit Commitments of the Class being so increased; provided that if the Incremental Revolving LoanLenders require an interest rate in excess of the interest rate then applicable to the Revolving Credit Facility of theClass being so increased, the interest rate on the Revolving Credit Facility of such Class shall be increased to equalsuch required rate without further consent of the affected Lenders; provided, further, that if the IncrementalRevolving Loan Lenders require a commitment fee on the undrawn portion of such Incremental Revolving Loansand Incremental Revolving Commitments in excess of the commitment fee then applicable to the Revolving CreditFacility of the Class being so increased, the commitment fee on the Revolving Credit Facility of such Class shall beincreased to equal such commitment fee without further consent of the affected Lenders. (i) Each Joinder Agreement may, without the consent of any other Lenders, effect suchamendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinionof the Administrative Agent, to effect the provisions of this Section 2.14 (including any amendments that are notadverse to the interests of any Lender that are made to effectuate changes necessary or appropriate to enable anyIncremental Term Loans that are intended to be fungible with any other Term Loans to be fungible with such otherTerm Loans, which shall include any amendments that modify the aggregate principal amount of scheduledinstallment payments to the extent such amendment does not decrease the installment payment an existing TermLender would have received prior to giving effect to any such amendment). (j) This Section 2.14 shall supersede any provisions in Section 2.13 or Section 10.01 to thecontrary. Section 2.15Cash Collateral . (a) Certain Credit Support Events. Upon the request of the Administrative Agent or any L/CIssuer if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, theBorrower shall, in each case, immediately Cash Collateralize all L/C Obligations in an amount equal to 105% ofthe then Outstanding Amount of all L/C Obligations. At any time that there shall exist a Defaulting Lender,immediately upon the request of the Administrative Agent or any L/C Issuer, the Borrower shall deliver to theAdministrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after giving effect toSection 2.16(a)(iv) and any Cash Collateral provided by the Defaulting Lender). (b) Grant of Security Interest. All Cash Collateral (other than credit support not constitutingfunds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at a bank selected bythe Borrower and reasonably acceptable to the Administrative Agent. The Borrower, and to the extent provided byany Lender, such Lender, 98
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hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the AdministrativeAgent, the L/C Issuers and the Revolving Credit Lenders, and agrees to maintain, a first priority security interest inall such cash, deposit accounts and all balances therein, and all other property so provided as Cash Collateralpursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such CashCollateral may be applied pursuant to Section 2.15(c). If at any time the Administrative Agent determines that CashCollateral is subject to any right or claim of any Person other than the Administrative Agent as herein provided, orthat the total amount of such Cash Collateral is less than the applicable Fronting Exposure and other obligationssecured thereby, the Borrower or the relevant Defaulting Lender will, promptly upon demand by the AdministrativeAgent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminatesuch deficiency. (c) Application. Notwithstanding anything to the contrary contained in this Agreement, CashCollateral provided under any of this Section 2.15 or Sections 2.03, 2.05, 2.16 or Section 8.02 in respect of Lettersof Credit shall be held and applied to the satisfaction of the specific L/C Obligations, obligations to fundparticipations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued onsuch obligation) and other obligations for which the Cash Collateral was so provided, prior to any other applicationof such property as may be provided for herein. (d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce FrontingExposure or other obligations shall be released promptly following (i) the elimination of the applicable FrontingExposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of theapplicable Lender (or, as appropriate, its assignee following compliance with Section 10.06(b))) or (ii) theAdministrative Agent’s good faith determination that there exists excess Cash Collateral; provided that (x) CashCollateral furnished by or on behalf of a Loan Party shall not be released during the continuance of an Event ofDefault (and following application as provided in this Section 2.15 may be otherwise applied in accordance withSection 8.03), and (y) the Person providing Cash Collateral and the applicable L/C Issuer may agree that CashCollateral shall not be released but instead held to support future anticipated Fronting Exposure or otherobligations. Section 2.16Defaulting Lenders . (a) Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if anyLender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to theextent permitted by applicable Law: (i) Waivers and Amendments. That Defaulting Lender’s right to approve or disapproveany amendment, modification, waiver or consent with respect to this Agreement shall be restricted as setforth in the definitions of Required Lenders, Required Revolving Credit Lenders, and Required FacilityLenders and, in addition, Defaulting Lenders shall not be permitted to vote with respect to any otheramendment, modification, waiver or consent pursuant to Section 10.01 or otherwise direct theAdministrative Agent pursuant to the terms hereof or of the other Loan Documents; provided that anyamendment, modification, waiver or consent requiring the consent of all Lenders or each affected Lenderwhich affects such Defaulting Lender differently than other affected Lenders shall require the consent ofsuch Defaulting Lender. 99
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(ii) Reallocation of Payments. Any payment of principal, interest, fees or other amountsreceived by the Administrative Agent for the account of that Defaulting Lender (whether voluntary ormandatory, at maturity, pursuant to Article 8 or otherwise, and including any amounts made available to theAdministrative Agent by that Defaulting Lender pursuant to Section 10.08), shall be applied at such time ortimes as may be determined by the Administrative Agent as follows: first, to the payment of any amountsowing by that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a prorata basis of any amounts owing by that Defaulting Lender to the L/C Issuers; third, if so determined by theAdministrative Agent or requested by any L/C Issuer, to be held as Cash Collateral for future fundingobligations of that Defaulting Lender of any participation in any Letter of Credit; fourth, as the Borrowermay request (so long as no Default exists), to the funding of any Loan in respect of which that DefaultingLender has failed to fund its portion thereof as required by this Agreement, as determined by theAdministrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in anon-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender tofund Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders or any L/CIssuer as a result of any judgment of a court of competent jurisdiction obtained by any Lender or any L/CIssuer against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations underthis Agreement; seventh, so long as no Default exists, to the payment of any amounts owing to the Borroweras a result of any judgment of a court of competent jurisdiction obtained by the Borrower against thatDefaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement;and eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; providedthat if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect ofwhich that Defaulting Lender has not fully funded its appropriate share and (y) such Loans or L/CBorrowings were made at a time when the conditions set forth in Section 4.02 were satisfied or waived,such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all non-DefaultingLenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owedto, that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a DefaultingLender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateralpursuant to this Section 2.16(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, andeach Lender irrevocably consents hereto. (iii) Certain Fees. That Defaulting Lender (x) shall not be entitled to receive acommitment fee pursuant to Section 2.09(a) for any period during which that Lender is a Defaulting Lender(and the Borrower shall not be required to pay any such fee that otherwise would have been required tohave been paid to that Defaulting Lender) and (y) shall be limited in its right to receive Letter of Credit Feesas provided in Section 2.03(h). With respect to any fee not required to be paid to any Defaulting Lenderpursuant to this Section 2.16(a)(iii), the Borrower shall (1) pay to each Lender that is not a DefaultingLender that portion of any such fee otherwise payable to such Defaulting Lender with respect to suchDefaulting Lender’s participation in Letters of Credit that has been reallocated to such non-DefaultingLender pursuant to Section 2.03, (2) pay to each L/C Issuer the amount of any such fee otherwise payable tosuch Defaulting Lender to the extent allocable to such L/C Issuer’s Fronting Exposure to such DefaultingLender, and (3) not be required to pay the remaining amount of any such fee. (iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure. During anyperiod in which there is a Defaulting Lender in respect of the Revolving Credit Facility, for purposes ofcomputing the amount of the obligation of each Revolving Credit Lender that is not a Defaulting Lender toacquire, refinance or 100
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fund participations in Letters of Credit pursuant to Section 2.03, the “Applicable Percentage” and“Applicable Revolving Credit Percentage” of each Revolving Credit Lender that is not a Defaulting Lenderin respect of the Revolving Credit Facility shall be computed without giving effect to the Revolving CreditCommitment of that Defaulting Lender; provided that (i) each such reallocation shall be given effect only if,at the date the applicable Revolving Credit Lender becomes a Defaulting Lender, no Default exists; and (ii)the aggregate obligation of each Revolving Credit Lender that is not a Defaulting Lender to acquire,refinance or fund participations in Letters of Credit shall not exceed the positive difference, if any, of (x) theRevolving Credit Commitment of that Revolving Credit Lender that is not a Defaulting Lender minus (y)the aggregate Outstanding Amount of the Revolving Credit Loans of such Revolving Credit Lender plussuch Revolving Credit Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of allL/C Obligations. (b) Defaulting Lender Cure. If the Borrower, the Administrative Agent and the L/C Issuers agreein writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender,the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in suchnotice and subject to any conditions set forth therein (which may include arrangements with respect to any CashCollateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the otherLenders (and shall pay to such other Lenders any break funding costs that such other Lenders may incur as a resultof such purchase) or take such other actions as the Administrative Agent may determine to be necessary to causethe Loans and funded and unfunded participations in Letters of Credit to be held on a pro rata basis by theRevolving Credit Lenders in accordance with their Applicable Revolving Credit Percentages (without giving effectto Section 2.16(a)(iv)), whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustmentswill be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower whilethat Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed bythe affected parties, no change hereunder from Defaulting Lender to Revolving Credit Lender will constitute awaiver or release of any claim of any party hereunder arising from that Revolving Credit Lender’s having been aDefaulting Lender. Section 2.17Refinancing Facilities . (a) On one or more occasions, the Borrower may obtain, from any Lender or any other bank orfinancial institution or other institutional lender or investor that would constitute an Eligible Assignee if it werepurchasing Loans hereunder and that agrees to provide any portion of Refinancing Term Commitments,Refinancing Term Loans, Other Revolving Commitments or Other Revolving Loans, Credit AgreementRefinancing Indebtedness in the form of Refinancing Term Commitments, Refinancing Term Loans, OtherRevolving Commitments or Other Revolving Loans, in each case pursuant to a Refinancing Amendment inaccordance with this Section 2.17 (each, an “Additional Refinancing Lender”); provided that (i) theAdministrative Agent and each L/C Issuer shall have consented (such consent not to be unreasonably withheld,conditioned, or delayed) to such Lender’s or Additional Refinancing Lender’s providing such Refinancing TermCommitments, Refinancing Term Loans, Other Revolving Commitments or Other Revolving Loans to the extentsuch consent, if any, would be required under Section 10.06 for an assignment of Refinancing Term Commitments,Refinancing Term Loans, Other Revolving Commitments or Other Revolving Loans, as applicable, to such Lenderor Additional Refinancing Lender; provided, further, that the following terms are satisfied: 101
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(i) any Refinancing Term Loans may participate on a pro rata basis or on a less than prorata basis (but not on a greater than pro rata basis) as among the various Classes of Term Loans (inaccordance with the respective outstanding principal amounts thereof) in any voluntary or mandatoryrepayments or prepayments of Term Loans hereunder, as specified in the applicable RefinancingAmendment; (ii) (x) all Other Revolving Commitments shall be deemed to be Revolving CreditCommitments for purposes of borrowings and prepayments of Revolving Credit Loans and participations inLetters of Credit and (y) the borrowing and repayment of Other Revolving Loans and the termination orreduction of Other Revolving Commitments after the date of obtaining any Other Revolving Commitmentsshall be made on a pro rata basis or non-pro rata basis with all other Revolving Commitments as directed bythe Borrower; (iii) subject to the provisions of Section 2.03(k) to the extent dealing with Letters ofCredit which mature or expire after a maturity date when there exist Other Revolving Commitments with alonger maturity date, all Letters of Credit shall be participated on a pro rata basis by all Lenders withRevolving Credit Commitments (including Other Revolving Commitments) in accordance with theirApplicable Revolving Credit Percentage; and (iv) assignments and participations of Other Revolving Commitments and OtherRevolving Loans shall be governed by the same assignment and participation provisions applicable toOriginal2025 Revolving Credit Commitments and Original2025 Revolving Credit Loans. (b) The effectiveness of any Refinancing Amendment shall be subject to the satisfaction on thedate thereof of each of the conditions set forth in Section 4.02 and, to the extent reasonably requested by theAdministrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions andofficersofficer’s certificates consistent with those delivered on the Closing Date other than changes to such legalopinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonablysatisfactory to the Administrative Agent and (ii) reaffirmation agreements and/or such amendments to the CollateralDocuments as may be reasonably requested by the Administrative Agent in order to ensure that the enforceabilityof the Collateral Documents and the perfection and priority of the Liens thereunder are preserved and maintained. (c) Each issuance of Credit Agreement Refinancing Indebtedness under Section 2.17(a) shall bein an aggregate principal amount that is not less than $25,000,000. (d) Each of the parties hereto hereby agrees that this Agreement and the other Loan Documentsmay be amended pursuant to a Refinancing Amendment, without the consent of any other Lenders, to the extent(but only to the extent) necessary to (i) reflect the existence and terms of the Credit Agreement RefinancingIndebtedness incurred pursuant thereto and (ii) effect such other amendments to this Agreement and the other LoanDocuments as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and theBorrower, to effect the provisions of this Section 2.17, and the Lenders hereby expressly authorize theAdministrative Agent to enter into any such Refinancing Amendment. (e) This Section 2.17 shall supersede any provisions in Section 2.13 and 10.01 to the contrary,and nothing in Section 2.05 to the contrary shall prohibit the application of this Section 2.17. 102
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Article 3.TAXES, YIELD PROTECTION AND ILLEGALITY Section 3.01Taxes . (a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. Any and allpayments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shallto the extent permitted by applicable Laws be made free and clear of and without deduction or withholding for anyTaxes. If, however, applicable Laws (as determined in the good faith discretion of the applicable WithholdingAgent) require the deduction or withholding of any Tax from any such payment by a Withholding Agent, then theapplicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the fullamount deducted or withheld to the relevant Governmental Authority in accordance with applicable Laws and, ifsuch Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessaryso that after such deduction or withholding has been made (including such deductions and withholdings applicableto additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum itwould have received had no such deduction or withholding been made. (b) Payment of Other Taxes by the Borrower. Without limiting the provisions of subsection (a)above, the Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordancewith applicable Laws, or at the option of the Administrative Agent timely reimburse it for the payment of OtherTaxes. (c) Tax Indemnifications. (i) Without limiting the provisions of subsection (a) or (b) above, the Loan Parties shall,and do hereby, jointly and severally indemnify each Recipient, and shall make payment in respect thereofwithin ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (includingIndemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01)withheld or deducted by a Withholding Agent or paid by the Recipient, and any reasonable out of pocketexpenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly orlegally imposed or asserted by the relevant Governmental Authority. The Borrower shall also, and doeshereby, indemnify the Administrative Agent, and shall make payment in respect thereof within ten daysafter demand therefor, for any amount which a Lender or any L/C Issuer for any reason fails to payindefeasibly to the Administrative Agent as required by clause (ii) of this subsection. A certificate as to theamount of any such payment or liability delivered to the Borrower by a Lender or an L/C Issuer (with acopy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of aLender or an L/C Issuer, shall be conclusive absent manifest error (so long as such certificate is prepared ina commercially reasonable manner in accordance with applicable Laws). No Loan Party shall be required tocompensate any Recipient pursuant to this Section 3.01 for any amounts to the extent that such Recipientdoes not furnish notice of such possible indemnification claim within 180 days after such Recipient receivesnotice from the applicable Governmental Authority of the specific Tax assessment giving rise to suchindemnification claim. (ii) Without limiting the provisions of subsection (a) or (b) above, each Lender and eachL/C Issuer shall, and does hereby, severally indemnify: 103
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(A) the Borrower and the Administrative Agent, and shall make payment inrespect thereof within ten (10) days after demand therefor, against any and all Taxes and any and allrelated losses, claims, liabilities, penalties, interest and expenses (including the fees, charges anddisbursements of any counsel for the Borrower or the Administrative Agent) incurred by or assertedagainst the Borrower or the Administrative Agent by a Governmental Authority as a result of thefailure by such Lender or any L/C Issuer, as the case may be, to deliver, or as a result of theinaccuracy or similar deficiency of, any documentation required to be delivered by such Lender orany L/C Issuer, as the case may be, to the Borrower or the Administrative Agent pursuant tosubsection (e)(ii); and (B) the Administrative Agent, and shall make payment in respect thereof withinten (10) days after demand therefor, for (x) any Indemnified Taxes attributable to such Lender orsuch L/C Issuer (but only to the extent that any Loan Party has not already indemnified theAdministrative Agent for such Indemnified Taxes and without limiting the obligation of the LoanParties to do so), (y) any Excluded Taxes attributable to such Lender or such L/C Issuer, in eachcase, that are payable or paid by the Administrative Agent in connection with any Loan Document,and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxeswere correctly or legally imposed or asserted by the relevant Governmental Authority and (z) anyTaxes attributable to such Lender’s or L/C Issuer’s failure to comply with the provisions of Section10.06(d) relating to the maintenance of a Participant Register. (iii) A certificate as to the amount of such payment or liability delivered to any Lender orany L/C Issuer by the Borrower or the Administrative Agent shall be conclusive absent manifest error. EachLender and L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all amountsat any time owing to such Lender or the L/C Issuer, as the case may be, under this Agreement or any otherLoan Document against any amount due to the Administrative Agent under this subsection (c). (d) Evidence of Payments. Upon request by the Borrower or the Administrative Agent, as thecase may be, as soon as possible after any payment of Taxes by any Loan Party or by the Administrative Agent to aGovernmental Authority as provided in this Section 3.01, such Loan Party shall deliver to the Administrative Agentor the Administrative Agent shall deliver to such Loan Party, as the case may be, the original or a certified copy of areceipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws toreport such payment or other evidence of such payment reasonably satisfactory to such Loan Party or theAdministrative Agent, as the case may be. (e) Status of Lenders; Tax Documentation. (i) For purposes of this Section 3.01(e), the term “Lender” includes any L/C Issuer. EachLender that is entitled to an exemption from or reduction of withholding Tax with respect to payments underany Loan Document shall deliver to the Borrower and to the Administrative Agent, at the time or timesreasonably requested by the Borrower or the Administrative Agent, such properly completed and executeddocumentation reasonably requested by the Borrower or the Administrative Agent as will permit suchpayments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, ifreasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentationprescribed by applicable Laws or reasonably requested by the Borrower or the Administrative Agent as willenable the Borrower or the Administrative Agent to determine whether or not such Lender is 104
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subject to backup withholding or information reporting requirements. Notwithstanding anything to thecontrary in the preceding two sentences, the delivery, completion and execution of documentation and otherrequested information described in this subsection (e)(i) or (e)(ii)(C) (and not, for the avoidance of doubt,otherwise described in subsection (e)(ii)) shall not be required if in the Lender’s reasonable judgment suchdelivery, completion or execution would subject the Lender to any material unreimbursed cost or expense orwould materially prejudice the legal or commercial position of such Lender. (ii) Without limiting the generality of the foregoing, on or prior to the date on which aLender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonablerequest of the Borrower or the Administrative Agent), but only to the extent it is legally entitled to do so, (A) any Lender that is a U.S. Person shall deliver to the Borrower and theAdministrative Agent executed copies of IRS Form W-9 or such other documentation or informationprescribed by applicable Laws or reasonably requested by the Borrower or the Administrative Agentas will enable the Borrower or the Administrative Agent, as the case may be, to determine whetheror not such Lender is subject to backup withholding or information reporting requirements; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver tothe Borrower and the Administrative Agent (in such number of copies as shall be reasonablyrequested by the recipient), whichever of the following is applicable: (1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which theUnited States is a party (x) with respect to payments of interest under any Loan Document,executed copies of IRS Form W-8BEN or W-8BEN-E establishing an exemption from, orreduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treatyand (y) with respect to any other applicable payments under any Loan Document, IRS FormW-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federalwithholding Tax pursuant to the “business profits” or “other income” article of such taxtreaty, (2) executed copies of IRS Form W-8ECI, (3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interestunder section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit H-1 tothe effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the meaning ofsection 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described insection 881(c)(3)(C) of the Code and (y) executed copies of Internal Revenue Service FormW-8BEN or W-8BEN-E, or (4) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. TaxCompliance Certificate substantially in the form of Exhibit H-2 or H-3, IRS Form W-9,and/or other certification documents from each beneficial owner, as applicable; provided thatif the Foreign Lender is a partnership and one or more direct 105
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or indirect partners of such Foreign Lender are claiming the portfolio interest exemption,such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in theform of Exhibit H-4 on behalf of each such direct and indirect partner together with theexecuted copies of the applicable IRS Forms; (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver tothe Borrower and the Administrative Agent (in such number of copies as shall be reasonablyrequested by the Recipient) on or prior to the date on which such Foreign Lender becomes a Lenderunder this Agreement (and from time to time thereafter upon the reasonable request of the Borroweror the Administrative Agent) executed copies of any other form prescribed by applicable Law as abasis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed,together with such supplementary documentation as may be prescribed by applicable Law to permitthe Borrower or the Administrative Agent to determine the withholding or deduction required to bemade. (iii) If a payment made to a Lender under any Loan Document would be subject to U.S.federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicablereporting requirements of FATCA (including those contained in section 1471(b) or 1472(b) of the Code, asapplicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or timesprescribed by law and at such time or times reasonably requested by the Borrower or the AdministrativeAgent such documentation prescribed by applicable Law (including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or theAdministrative Agent as may be necessary for the Borrower and the Administrative Agent to comply withtheir obligations under FATCA and to determine that such Lender has complied with such Lender’sobligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely forpurposes of this clause (iii), “FATCA” shall include any amendments made to FATCA after the date of thisAgreement. (iv) Each Lender shall promptly (A) notify the Borrower and the Administrative Agent ofany change in circumstances which would modify or render invalid any claimed exemption or reduction orif any form or certification it previously delivered becomes obsolete or inaccurate or expires and (B) updateany such form or certification or notify the Borrower and Administrative Agent in writing of its legalinability to do so. (f) Treatment of Certain Refunds. At no time shall the Administrative Agent have any obligationto file for or otherwise pursue on behalf of a Lender or an L/C Issuer, or have any obligation to pay to any Lenderor L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or L/CIssuer, as the case may be. If the Administrative Agent, any Lender or any L/C Issuer determines, in its solediscretion exercised reasonably, that it has received a refund of any Indemnified Taxes as to which it has beenindemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to thisSection 3.01, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnitypayments made, or additional amounts paid, by the Borrower under this Section 3.01 with respect to theIndemnified Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by theAdministrative Agent, such Lender or such L/C Issuer, as the case may be, related to the receipt of such refund andwithout interest (other than any interest paid by the relevant Governmental Authority with respect to such refund),provided that the Borrower, upon the request of the Administrative 106
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Agent, such Lender or such L/C Issuer, agrees to repay the amount paid over to the Borrower (plus any penalties,interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, suchLender or such L/C Issuer in the event the Administrative Agent, such Lender or such L/C Issuer is required torepay such refund to such Governmental Authority. This subsection shall not be construed to require theAdministrative Agent, any Lender or any L/C Issuer to make available its tax returns (or any other informationrelating to its taxes that it deems confidential) to the Borrower or any other Person. Notwithstanding anything to thecontrary in this subsection, in no event will the Administrative Agent, such Lender or such L/C Issuer be requiredto pay any amount to the Borrower pursuant to this subsection the payment of which would place theAdministrative Agent, such Lender or such L/C Issuer in a less favorable after-Tax position than the AdministrativeAgent, such Lender or such L/C Issuer would have been in if the Tax subject to indemnification and giving rise tosuch refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additionalamounts giving rise to such refund had never been paid. (g) Survival. Each party’s obligations under this Section 3.01 shall survive the resignation and/orreplacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender or any L/CIssuer, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all otherObligations. Section 3.02Illegality . If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Adjusted Term SOFR Rate, the Eurodollar Rate or the Daily Simple RFR, or to determine or charge interest rates based upon the Adjusted Term SOFR Rate, the Eurodollar Rate or the Daily Simple RFR, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, U.S. Dollars or any Alternative Currency in the applicable interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to make or continue Term SOFR Loans, Eurodollar Rate Loans or RFR Loans in the affected currency or currencies or to convert Base Rate Loans to Term SOFR Loans shall be suspended and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Adjusted Term SOFR Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Adjusted Term SOFR Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), if such Loans are not denominated in U.S. Dollars, prepay such Loans, or if such Loans are denominated in U.S. Dollars, convert all such Loans of such Lender to Base Rate Loans or (y) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans (the interest rate on which is determined by reference to the Adjusted Term SOFR Rate component of the Base Rate), the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Adjusted Term SOFR Rate component of the Base Rate, in each case, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such 107
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Term SOFR Loans or Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Term SOFR Loans, Eurodollar Rate Loans or RFR Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted. Section 3.03Inability to Determine Rates . Subject to Section 3.08, if the Required Lenders determine that for any reason: (a) in connection with any request for a Term SOFR Loan, a Eurodollar Rate Loan or aconversion to or continuation thereof that (A)(i) deposits are not being offered to banks in the interbank market forthe applicable amount and Interest Period of such Loan or (ii) adequate and reasonable means do not exist fordetermining the Adjusted Term SOFR Rate or the Eurodollar Rate for any requested Interest Period with respectto a proposed Term SOFR Loan or Eurodollar Rate Loan, as applicable, or (B) the Adjusted Term SOFR Rate orthe Eurodollar Rate, for any requested Interest Period with respect to a proposed Term SOFR Loan or EurodollarRate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan; or (b) in connection with any RFR Loan, that adequate and reasonable means do not exist fordetermining the Daily Simple RFR, (c) then in each case, the Required Lenders will so notify the Administrative Agent and the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Term SOFR Loans, Eurodollar Rate Loans or RFR Loans, as applicable, shall be suspended and (y) in the event of a determination described in the preceding sentence with respect to the Adjusted Term SOFR Rate component of the Base Rate, the utilization of the Adjusted Term SOFR Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Term SOFR Loans, Eurodollar Rate Loans or RFR Loans or, failing that, will, (x) in the case of Loans in U.S. Dollars, be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in U.S. Dollars, in the amount specified therein, (y) in the case of Loans in an Alternative Currency other than Sterling, be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans in U.S. Dollars (in an amount equal to the U.S. Dollar Equivalent of the amount requested to be borrowed or continued in the Alternative Currency) and (z) in the case of Loans in Sterling, be deemed to have requested a Loan in Sterling that bears interest at the Central Bank Rate plus the Applicable Rate applicable to RFR Loans; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for Sterling cannot be determined, then the Borrower shall be deemed to have converted any such request into a request for a Borrowing of Base Rate Loans in U.S. Dollars (in an amount equal to the U.S. Dollar Equivalent of the amount in question). Upon receipt of such notice with respect to any outstanding Loan, (x) in the case of Loans in U.S. Dollars, the Borrower shall convert all such outstanding Loans to Base Rate Loans, (y) in the case of Loans in an Alternative Currency other than Sterling, the Borrower shall prepay such Loans and (z) in the case of Loans in Sterling, the Borrower shall convert all such outstanding Loans to Loans that bear interest at the Central Bank 108
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Rate plus the Applicable Rate applicable to RFR Loans; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for Sterling cannot be determined, then all such Loans shall be prepaid in full promptly upon written demand by the Administrative Agent. Upon any such prepayment, the Borrower shall also pay accrued interest on the amount so prepaid. Section 3.04 Increased Costs; Reserves on Eurodollar Rate Loans, Term SOFR Loans and RFR Loans. (a) Increased Costs Generally. If any Change in Law shall: (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,insurance charge or similar requirement against assets of, deposits with or for the account of, or creditextended or participated in by, any Lender (except any reserve requirement contemplated by Section3.04(e)) or any L/C Issuer; (ii) subject any Recipient to any Tax (except for Indemnified Taxes covered by Section3.01 and the imposition of, or any change in the rate of, any Tax described in clause (a)(ii) or clause (b)through (d) of the definition of Excluded Taxes) on its loans, loan principal, letters of credit, commitment,or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (iii) impose on any Lender or any L/C Issuer or the interbank market any other condition,cost or expense (other than Taxes) affecting this Agreement or Term SOFR Loans, Eurodollar Rate Loans orRFR Loans made by such Lender or any Letter of Credit or participation therein; and the result of any of the foregoing shall be to increase the cost to the Administrative Agent, any L/C Issuer or any Lender of making, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by the Administrative Agent, any Lender or any L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon the request of the Administrative Agent, such Lender or such L/C Issuer, the Borrower will pay to the Administrative Agent, such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate the Administrative Agent, such Lender or such L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered; provided, that the Borrower shall not be obligated to pay any such compensation unless the Lender or L/C Issuer requesting such compensation also is requesting compensation as a result of such Change in Law from other similarly situated customers under agreements relating to similar credit transactions that include provisions similar to this Section 3.04(a); provided that the Borrower shall not be required to compensate a Lender or a L/C Issuer pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or L/C Issuer notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or L/C Issuer’s intention to claim compensation therefor; provided, further, that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. 109
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(b) Capital Requirements. If any Lender or any L/C Issuer determines that any Change in Lawaffecting such Lender or such L/C Issuer or any Lending Office of such Lender or such Lender’s or such L/CIssuer’s holding company, if any, regarding capital or liquidity requirements has or would have the effect ofreducing the rate of return on such Lender’s or such L/C Issuer’s capital or on the capital of such Lender’s or suchL/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or theLoans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by suchL/C Issuer, to a level below that which such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’sholding company could have achieved but for such Change in Law (taking into consideration such Lender’s or suchL/C Issuer’s policies and the policies of such Lender’s or such L/C Issuer’s holding company with respect to capitaladequacy and liquidity), then from time to time the Borrower will pay to such Lender or such L/C Issuer, as thecase may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer or suchLender’s or such L/C Issuer’s holding company for any such reduction suffered; provided, that the Borrower shallnot be obligated to pay any such compensation unless the Lender or such L/C Issuer requesting such compensationalso is requesting compensation as a result of such Change in Law from other similarly situated customers underagreements relating to similar credit transactions that include provisions similar to this Section 3.04(b). (c) Certificates for Reimbursement. A certificate of a Lender or an L/C Issuer setting forth inreasonable detail the amount or amounts necessary to compensate such Lender or such L/C Issuer or its holdingcompany, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to the Borrowershall be conclusive absent manifest error. The Borrower shall pay such Lender or such L/C Issuer, as the case maybe, the amount shown as due on any such certificate within ten days after receipt thereof. (d) Delay in Requests. Failure or delay on the part of any Lender or any L/C Issuer to demandcompensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s orsuch L/C Issuer’s right to demand such compensation, provided that the Borrower shall not be required tocompensate a Lender or an L/C Issuer pursuant to the foregoing provisions of this Section for any increased costsincurred or reductions suffered more than six months prior to the date that such Lender or such L/C Issuer, as thecase may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and ofsuch Lender’s or such L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Lawgiving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall beextended to include the period of retroactive effect thereof). (e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each Lender, as long as suchLender shall be required to maintain reserves with respect to liabilities or assets consisting of or includingEurodollar funds or deposits (currently known as “Eurodollar liabilities”), additional interest on the unpaidprincipal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Loan bysuch Lender (as determined by such Lender in good faith, which determination shall be conclusive and binding),which shall be due and payable on each date on which interest is payable on such Loan, provided the Borrowershall have received at least ten days’ prior notice (with a copy to the Administrative Agent) of such additionalinterest from such Lender; provided, further, that the Borrower shall not be obligated to pay any such additionalinterest unless the Lender requesting such additional interest also is requesting additional interest from othersimilarly situated customers under agreements relating to similar credit transactions that include provisions similarto this Section 3.04(e). If a Lender fails to give notice ten days prior to the relevant Interest Payment Date, suchadditional interest shall be due and payable ten days from receipt of such notice. Section 3.05Compensation for Losses 110
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. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of: (a) any continuation, conversion, payment or prepayment of any Loan other than a Base RateLoan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory,automatic, by reason of acceleration, or otherwise); (b) any failure by the Borrower to prepay, borrow, continue or convert any Loan other than aBase Rate Loan on the date or in the amount notified by the Borrower (in the case of a borrowing, for a reasonother than the failure of such Lender to make a Loan); (c) any assignment of a Term SOFR Loan or Eurodollar Rate Loan on a day other than the lastday of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 2.14, 3.06(b) orSection 10.13; or (d) any payment by the Borrower of the principal of or interest on any Loan or of any drawingunder any Letter of Credit (or interest due thereon) denominated in an Alternative Currency in a different currencyfrom the currency in which the applicable Loan or Letter of Credit is denominated (except to the extent an L/CIssuer has required payment of any drawing under a Letter of Credit in U.S. Dollars pursuant to Section 2.03(c)(i)),including any foreign exchange losses or loss of anticipated profits and any loss or expense arising from theliquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate thedeposits from which such funds were obtained or from the performance of any foreign exchange contract. TheBorrower shall also pay any customary and reasonable administrative fees charged by such Lender in connectionwith the foregoing. For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan or each Term SOFR Loan, as applicable, made by it at the Eurodollar Rate or Adjusted Term SOFR Rate, as applicable, for such Loan by a matching deposit or other borrowing in the London, England or other offshore interbank market for the applicable currency for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan or Term SOFR Loan was in fact so funded. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender, as specified in this Section, delivered to the Borrower shall be conclusive absent manifest error. Section 3.06Mitigation Obligations; Replacement of Lenders . (a) Designation of a Different Lending Office. If any Lender requests compensation underSection 3.04, or the Borrower is required to pay any additional amount to any Lender, any L/C Issuer, or anyGovernmental Authority for the account of any Lender or any L/C Issuer pursuant to Section 3.01, or if any Lendergives a notice pursuant to Section 3.02, then such Lender or such L/C Issuer shall, as applicable, use reasonableefforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights andobligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lenderor such L/C Issuer, such designation or assignment (i) would eliminate or reduce amounts payable pursuant toSection 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02as applicable, and (ii) in each case, 111
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would not subject such Lender or such L/C Issuer, as the case may be, to any unreimbursed cost or expense andwould not otherwise be disadvantageous to such Lender or such L/C Issuer, as the case may be. The Borrowerhereby agrees to pay all reasonable costs and expenses incurred by any Lender or such L/C Issuer in connectionwith any such designation or assignment. (b) Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if theBorrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any GovernmentalAuthority for the account of any Lender pursuant to Section 3.01, and in each case, such Lender has declined or isunable to designate a different Lending Office in accordance with Section 3.06(a) which would eliminate suchrequest for compensation or requirement to pay such additional amount, or if any Lender is a Defaulting Lenderhereunder, the Borrower may, at its sole expense and effort, upon notice to such Lender and the AdministrativeAgent, replace such Lender in accordance with Section 10.13. Section 3.07Survival . All of the Borrower’s obligations under this Article 3 shall survive the termination of the Aggregate Commitments, any assignment of rights by, or the replacement of, a Lender, repayment, satisfaction or discharge of all other Obligations hereunder, and resignation or replacement of the Administrative Agent. Section 3.08Effect of Benchmark Transition Event . (a) (a) Notwithstanding anything to the contrary herein or in any other Loan Document (and any Swap Contract shall be deemed not to be a “Loan Document” for purposes of this Section 3.08), if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement” with respect to U.S. Dollars for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” with respect to any Agreed Currency for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders of each affected Class. (a) (b) In connection with the implementation of a Benchmark Replacement, the AdministrativeAgent will have the right to make Benchmark Replacement Conforming Changes from time to time and,notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementingsuch Benchmark Replacement Conforming 112
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Changes will become effective without any further action or consent of any other party to this Agreement. (b) (c) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) anyoccurrence of a Benchmark Transition Event and its related Benchmark Replacement Date, (ii) the implementationof any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, and(iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision orelection that may be made by the Administrative Agent or Lenders pursuant to this Section 3.08, including anydetermination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event,circumstance or date and any decision to take or refrain from taking any action, will be conclusive and bindingabsent manifest error and may be made in its or their sole discretion and without consent from any other partyhereto, except, in each case, as expressly required pursuant to this Section 3.08. (c) (d) Upon the Borrower’s receipt of notice of the commencement of a BenchmarkUnavailability Period, the Borrower may revoke any request for a Borrowing of, conversion to or continuation ofTerm SOFR Loans or Eurodollar Rate Loans, as applicable to be made, converted or continued during anyBenchmark Unavailability Period and, failing that, (x) in the case of Term SOFR Loans denominated in U.S.Dollars, the Borrower will be deemed to have converted any such request into a request for a Borrowing of orconversion to Base Rate Loans and (y) in the case of a request for a Borrowing or continuation in an AlternativeCurrency, the Borrower will be deemed to have converted any such request into a request for a Borrowing of orconversion to Base Rate Loans in U.S. Dollars (in an amount equal to the U.S. Dollar Equivalent of the amountrequested to be borrowed or continued in the Alternative Currency). During any Benchmark Unavailability Period,the component of the Base Rate based upon the Adjusted Term SOFR Rate will not be used in any determinationof Base Rate. Article 4.CONDITIONS PRECEDENT Section 4.01Conditions Precedent to the Closing Date . The effectiveness of this Agreement and the obligations of each L/C Issuer and each Lender to make the initial Credit Extensions on the Closing Date (if any) shall, in each case, be subject to the following conditions: (a) The Administrative Agent’s receipt of the following, each of which shall be originals,facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, eachproperly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonablysatisfactory to the Administrative Agent: (i) a Note executed by the Borrower in favor of each Lender that has requested aNote at least two (2) Business Days prior to the Closing Date; (ii) executed copies of (x) this Agreement, and (y) each Collateral Document set forth onSchedule 4.01(a)(ii), executed by each Loan Party thereto, together with: (A) evidence that all filings under the UCC shall have been taken, completed orotherwise provided for in a manner reasonably satisfactory to the Administrative Agent; and 113
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(B) any other documents and instruments as may be necessary or advisable in thereasonable opinion of the Administrative Agent to vest in the Administrative Agent valid andsubsisting first priority perfected Liens on the properties purported to be subject to the CollateralDocuments set forth on Schedule 4.01(a)(ii), enforceable against all third parties in accordance withtheir terms; (iii) such certificates of resolutions or other action, incumbency certificates and/or othercertificates of Responsible Officers of each Loan Party as the Administrative Agentmay reasonably require evidencing the identity, authority and capacity of eachResponsible Officer thereof authorized to act as a Responsible Officer in connectionwith this Agreement and the other Loan Documents to which such Loan Party is aparty; (iv) an opinion from (A) Lewis Rice LLC, counsel to the Loan Parties, and (B) local orother counsel in each of the jurisdictions listed on Schedule 4.01(a)(iv), in each caseas reasonably requested by the Administrative Agent, in the case of each of clauses(A) and (B), in form and substance reasonably satisfactory to the AdministrativeAgent; (v) a certificate attesting to the Solvency of the Borrower and its Subsidiaries (taken as awhole) on the Closing Date after giving effect to the Transactions, from the ChiefFinancial Officer of the Borrower, substantially in the form attached hereto as ExhibitK; (vi) a certificate attesting to the compliance with clauses (e), (f) and (g) of this Section4.01 on the Closing Date from a Responsible Officer of the Borrower; (vii) if any Loans are to be made on the Closing Date, a Committed Loan Notice pursuantto Section 2.02; and (viii)copies of a recent Lien search in each jurisdiction reasonably requested by theAdministrative Agent with respect to the Loan Parties. (b) All reasonable fees and out-of-pocket expenses due and payable to the Lenders, theArrangers and the Administrative Agent and required to be paid on or prior to the Closing Date pursuant to the2021 Engagement Letter and the Fee Letter (as in effect on the Closing Date) shall have been paid or shall havebeen authorized to be deducted from the proceeds of the initial funding under the Facilities, so long as any suchfees or expenses not expressly set forth in the Fee Letters have beenLetter (as in effect on the Closing Date)have been invoiced not less than three (3) business days prior to the Closing Date. (c) Substantially concurrently with the initial funding of the Facility, all outstanding obligationsof the Borrower, BellRing Brands, LLC and its Restricted Subsidiaries under the Existing Credit Agreement shallbe repaid, all commitments thereunder and all guarantees, liens and security interests granted in connectiontherewith shall be terminated (the “Refinancing”). (d) The Administrative Agent and the Lenders shall have received at least three Business Daysprior to the Closing Date, to the extent requested in writing at least seven 114
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Business Days prior to the Closing Date, all documentation and other information that the Administrative Agentand the Lenders reasonably determine is necessary in order to allow the Administrative Agent and the Lenders tocomply with applicable “know your customer” and anti-money laundering rules and regulations, including the Actand the Beneficial Ownership Regulation. (e) The representations and warranties of the Borrower and each other Loan Party contained inArticle 5 hereof shall be true and correct in all material respects; provided that any representation and warranty thatis qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after givingeffect to any qualification therein) in all respects. (f) There has been no change, occurrence or development since September 30, 2021 that couldreasonably be expected to have a Material Adverse Effect. (g) At the time of and immediately after giving effect to the Transactions, no Default shall haveoccurred and be continuing. (h) The Administrative Agent shall have received a certificate from the Borrower’s insurancebroker or other evidence reasonably satisfactory to it that all insurance required to be maintained pursuant toSection 6.06 is in full force and effect, together with endorsements naming the Administrative Agent, for the benefitof the Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 6.06. (i) The Administrative Agent shall have received the annual financial statements of Old BRBRfor the fiscal years ended September 30, 2020 and September 30, 2021, and the quarterly financial statements ofOld BRBR for the fiscal quarter ended December 31, 2021. (j) Substantially concurrently with the initial funding of the Facility, Old BRBR shall file withthe Secretary of State of the State of Delaware a certificate of merger evidencing the Old BRBR Merger, in theform required by and executed in accordance with the relevant provisions of the General Corporation Law of theState of Delaware. Section 4.02Conditions to All Credit Extensions after the Closing Date . The obligation of each Lender to honor any Request for Credit Extension other than a Letter of Credit, and if such Request for Credit Extension is for a Letter of Credit, the obligation of the applicable L/C Issuer to honor such Request for Credit Extension, after the Closing Date (other than (x) pursuant to a Conversion/Continuation Notice and (y) in connection with the funding of an Incremental Term Loan) is subject to the following conditions precedent: (a) The representations and warranties of the Borrower and each other Loan Party contained inArticle 5 or any other Loan Document, or which are contained in any document furnished at any time under or inconnection herewith or therewith, that are qualified by materiality shall be true and correct (after giving effect toany qualification therein) on and as of the date of such Credit Extension, and each of the representations andwarranties of the Borrower and each other Loan Party contained in any other Loan Document or in any documentfurnished at any time under or in connection herewith or therewith that are not qualified by materiality shall be trueand correct in all material respects on and as of the date of such Credit Extension, except in each case to the extentthat such representations and warranties specifically refer to an earlier date, in which case they shall be true andcorrect (if qualified by materiality) after giving effect to any such qualification therein and otherwise, shall be trueand correct in all 115
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material respects as of such earlier date, and except that for purposes of this Section 4.02, the representations andwarranties contained in clauses (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statementsfurnished pursuant to clauses (a) and (b), respectively, of Section 6.01 (or, if no such financial statements have yetbeen delivered, to those delivered pursuant to Section 4.01(i)). (b) No Default shall exist, or would result from such proposed Credit Extension or from theapplication of the proceeds thereof. (c) The Administrative Agent and, if applicable, the applicable L/C Issuer shall have received aRequest for Credit Extension in accordance with the requirements hereof. (d) The Old BRBR Merger shall have become effective under the relevant provisions of theGeneral Corporation Law of the State of Delaware. Each Request for Credit Extension (other than pursuant to a Conversion/Continuation Notice) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension. Article 5.REPRESENTATIONS AND WARRANTIES The Borrower represents and warrants to the Administrative Agent and the Lenders on the Closing Date and on the date of each Credit Extension as contemplated by Section 4.02 as to each of the matters set forth below that: Section 5.01Existence, Qualification and Power . Each Loan Party and each Restricted Subsidiary (other than any Immaterial Subsidiary) thereof (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization; (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party; and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect. Section 5.02Authorization; No Contravention . The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any material contract to which such Person is a party or affecting such Person or the properties of such Person or any of its Restricted Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental 116
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Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law. Section 5.03Governmental Authorization; Other Consents . No material approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (a) the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, or for the consummation of the Transactions, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents or (c) the perfection or maintenance of the Liens created under the Collateral Documents (including the priority thereof), except for (x) filings and actions completed on or prior to the Closing Date and as contemplated hereby and by the Collateral Documents necessary to perfect or maintain the Liens on the Collateral granted by the Loan Parties in favor of the Administrative Agent for the benefit of the Secured Parties (including, without limitation, UCC financing statements and filings in the United States Patent and Trademark Office and the United States Copyright Office) and (y) approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect. Section 5.04Binding Effect . This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law). Section 5.05Financial Statements; No Material Adverse Effect (a) The Annual Financial Statements of the Borrower and its Subsidiaries: (A) were prepared inaccordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expresslynoted therein; (B) fairly present, in all material respects, the financial condition of the Borrower and its Subsidiariesas of the date thereof and their results of operations for the period covered thereby in accordance with GAAPconsistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (C) showall material indebtedness and other liabilities, direct or contingent, of the Borrower and its Subsidiaries, as of thedate thereof, including liabilities for taxes, material commitments and Indebtedness to the extent required by GAAPand (D) if required by Section 6.01(a), were accompanied by a reconciliation that explains or otherwise shows inreasonable detail the differences between the information relating to the Borrower and its Subsidiaries, on the onehand, and the information relating to the Borrower and its Restricted Subsidiaries on a standalone basis, on theother hand. (b) The Quarterly Financial Statements of the Borrower and its Subsidiaries: (A) were eachprepared in accordance with GAAP consistently applied throughout the period covered thereby, subject only tonormal year-end audit adjustments and the absence of footnotes, 117
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except as otherwise expressly noted therein, (B) fairly present, in all material respects, the financial condition of theBorrower and its Subsidiaries, as of the date thereof and their results of operations for the period covered therebyand (C) if required by Section 6.01(b), were accompanied by a reconciliation that explains or otherwise shows inreasonable detail the differences between the information relating to the Borrower and its Subsidiaries, on the onehand, and the information relating to the Borrower and its Restricted Subsidiaries on a standalone basis, on theother hand. (c) Since September 30, 2021, there has been no event or circumstance, either individually or inthe aggregate, that has had or could reasonably be expected to have a Material Adverse Effect. Section 5.06Litigation . There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of its Restricted Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document or (b) either individually or in the aggregate could reasonably be expected to have a Material Adverse Effect. Section 5.07Ownership of Property . Each of the Borrower and each Restricted Subsidiary has good record and marketable title to all owned property, or valid leasehold interests or valid licenses in all leased or licensed property, reasonably necessary or used in the ordinary conduct of its business, except for such defects in title, or failure to obtain a valid leasehold interest or valid license as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Section 5.08Environmental . (a) Each of the Loan Parties and its Restricted Subsidiaries is and has been in compliance withall Environmental Laws and has received and maintained in full force and effect all Environmental Permitsrequired for its current operations, except where non-compliance could not, either individually or in the aggregate,reasonably be expected to have a Material Adverse Effect. (b) To the Loan Parties’ knowledge, no Hazardous Materials are present, or have been releasedby any Person, whether related or unrelated to any Loan Party in, on, within, above, under, affecting or emanatingfrom any real property currently or previously owned, leased or operated by any Loan Party or its RestrictedSubsidiaries (i) in a quantity, location, manner or state requiring any cleanup, investigation or remedial actionpursuant to any Environmental Laws; (ii) in violation or alleged violation of any Environmental Laws; or (iii)which has or could give rise to any Environmental Liability, including any claim pursuant to any EnvironmentalLaws against any Loan Party or its Restricted Subsidiaries, except, in each case, as could not, either individually orin the aggregate, reasonably be expected to have a Material Adverse Effect. 118
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(c) No Environmental Claim is pending or, to the Loan Parties’ knowledge, proposed, threatenedor anticipated, with respect to or in connection with any Loan Party or its Restricted Subsidiaries or any realproperties now or previously owned, leased or operated by any Loan Party or its Restricted Subsidiaries except ascould not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (d) No properties now or, to the Loan Parties’ knowledge, previously owned, leased or operatedby any Loan Party or its Restricted Subsidiaries nor, to the Loan Parties’ knowledge, any property to which anyLoan Party or its Restricted Subsidiaries has transported or arranged for the transportation of any HazardousMaterial is listed or, to the Loan Parties’ knowledge, proposed for listing on the National Priorities Listpromulgated pursuant to CERCLA, on CERCLIS (as defined in CERCLA) or on any similar federal, state orforeign list of sites requiring investigation or cleanup, nor to the knowledge of the Loan Parties, is any suchproperty anticipated or to the Loan Parties’ knowledge, threatened to be placed on any such list, except as couldnot, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (e) To the Loan Parties’ knowledge, there are no Environmental Liabilities of any Loan Party orits Restricted Subsidiaries of any kind whatsoever, whether accrued, contingent, absolute, determined, determinableor otherwise, and there are no facts, conditions, situations or set of circumstances which could reasonably beexpected to result in or be the basis for any such Environmental Liability, except, in each case, as could not, eitherindividually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (f) No Loan Party or any of its Restricted Subsidiaries has assumed or retained anyEnvironmental Liability of any other Person, except as could not, either individually or in the aggregate, reasonablybe expected to have a Material Adverse Effect. This Section 5.08 contains the sole and exclusive representations and warranties of the Loan Parties with respect to environmental matters. Section 5.09Insurance . The properties of the Borrower and its Restricted Subsidiaries are insured with financially sound and reputable insurance companies that are not Affiliates of the Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Borrower or the applicable Restricted Subsidiary operates. Section 5.10Taxes . The Borrower and its Restricted Subsidiaries have filed all Federal, state and other material tax returns and reports required to be filed, and have paid all Federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income, business, franchise or assets otherwise due and payable, except (a) those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP or (b) to the extent that failure to do so could not reasonably be expected to result in Material Adverse Effect. 119
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Section 5.11 ERISA Compliance; Labor Matters . (a) No ERISA Event has occurred or is reasonably expected to occur that, when taken togetherwith all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expectedto result in a Material Adverse Effect. Each Plan is in compliance in all material respects with the applicableprovisions of ERISA, the Code and other Federal or state laws. Each Pension Plan that is intended to be a qualifiedplan under Section 401(a) of the Code has received a favorable determination or opinion/advisory letter from theInternal Revenue Service to the effect that the form of such Plan is qualified under Section 401(a) of the Code andthe trust related thereto has been determined by the Internal Revenue Service to be exempt from federal income taxunder Section 501(a) of the Code, or an application for such a letter is currently being processed by the InternalRevenue Service. To the best knowledge of the Borrower, nothing has occurred that would prevent or cause the lossof such tax-qualified status. (b) There are no strikes, or other labor disputes pending or, to the Borrower’s knowledge,threatened against the Borrower or any of its Restricted Subsidiaries, the hours worked and payments made toemployees of the Borrower and its Restricted Subsidiaries have not been in violation of the Fair Labor StandardsAct or any other applicable law dealing with such matters and all payments due from the Borrower or any of itsRestricted Subsidiaries or for which any claim may be made against the Borrower or any of its RestrictedSubsidiaries on account of wages and employee health and welfare insurance and other benefits have been paid oraccrued as a liability on the books of the Borrower or such Restricted Subsidiary to the extent required by GAAPexcept, in each case, as would not reasonably be expected to result in a Material Adverse Effect. Except as couldnot reasonably be expected to result in a Material Adverse Effect, the consummation of the Transactions will notgive rise to a right of termination or right of renegotiation on the part of any union under any material collectivebargaining agreement to which the Borrower or any of its Restricted Subsidiaries (or any predecessor) is a party orby which the Borrower or any of its Restricted Subsidiaries (or any predecessor) is bound. (c) With respect to each scheme or arrangement mandated by a government other than theUnited States (a “Foreign Government Scheme or Arrangement”) and with respect to each employee benefitplan maintained, contributed to or required to be contributed to by any Loan Party or any Restricted Subsidiary ofany Loan Party primarily for the benefit of any employees located outside of the United States (a “Foreign Plan”): (i) any employer and employee contributions required by law or by the terms of anyForeign Government Scheme or Arrangement or any Foreign Plan have been made, or, if applicable,accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign Plan, the liability of eachinsurer for any Foreign Plan funded through insurance or the book reserve established for any Foreign Plan,together with any accrued contributions, is sufficient to procure or provide for the accrued benefitobligations, as of the Closing Date, with respect to all current and former participants in such Foreign Planaccording to the actuarial assumptions and valuations most recently used to account for such obligations inaccordance with applicable generally accepted accounting principles (“Fully Funded”), except where thefailure to be Fully Funded, in each case, could not, either individually or in the aggregate, reasonably beexpected to have a Material Adverse Effect; and 120
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(iii) each Foreign Plan required to be registered has been registered and has beenmaintained in good standing with applicable regulatory authorities. Section 5.12Subsidiaries; Equity Interests . As of the Closing Date, the Borrower has no Restricted Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.12, and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by the Borrower or one or more of its Subsidiaries in the amounts specified on Part (a) of Schedule 5.12 free and clear of all Liens except those created under the Collateral Documents. As of the Closing Date, (x) the Borrower has no Equity Interests in any other Person other than (i) those specifically disclosed in Part (b) of Schedule 5.12 and (ii) Equity Interests in Subsidiaries and (y) there are no Unrestricted Subsidiaries other than those listed on Part (c) of Schedule 5.12. All of the outstanding Equity Interests in the Borrower have been validly issued and are fully paid and nonassessable. Section 5.13Margin Regulations; Investment Company Act . (a) The Borrower is not engaged and will not engage, principally or as one of its importantactivities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by theFRB), or extending credit for the purpose of purchasing or carrying margin stock. (b) None of the Borrower, any Person Controlling the Borrower or any Restricted Subsidiary isor is required to be registered as an “investment company” under the Investment Company Act of 1940. Section 5.14Disclosure . (a) No report, financial statement, certificate or other information furnished in writing by or onbehalf of any Loan Party to the Administrative Agent or any Lender in connection with the Transactions ordelivered hereunder or under any other Loan Document (in each case, taken as a whole and as modified orsupplemented by other information so furnished) contains any material misstatement of fact or omits to state anymaterial fact necessary to make the statements therein, in the light of the circumstances under which they weremade, not materially misleading; provided that, with respect to projected financial information, the Borrowerrepresents only that such information was prepared in good faith based upon assumptions believed by it to bereasonable at the time made, it being recognized by the Administrative Agent and the Lenders that such financialinformation as it relates to future events is not to be viewed as fact and that actual results during the period orperiods covered by such financial information may differ from the projected results set forth therein by a materialamount. (b) As of the Closing Date, the information included in the Beneficial Ownership Certification istrue and correct in all respects. Section 5.15Compliance with Laws 121
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. Each Loan Party and each Restricted Subsidiary thereof is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties (including the Act), except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Section 5.16Intellectual Property; Licenses, Etc. The Borrower and its Restricted Subsidiaries own or possess the right to use all of the trademarks, service marks, trade names, trade dress, logos, domain names and all good willgoodwill associated therewith, copyrights, patents, patent rights, trade secrets, know-how, franchises, licenses, and other intellectual property rights (collectively, “IP Rights”) that are reasonably necessary for the operation of their respective businesses as currently conducted, without conflict with the rights of any other Person, except where the failure to own or possess the right to use any such IP Rights would not reasonably be expected to have a Material Adverse Effect. The Borrower and its Restricted Subsidiaries hold all right, title and interest in and to such owned IP Rights free and clear of any Lien (other than Liens permitted by Section 7.01). No slogan or other advertising device, product, process, method, substance, part or other material or activity now employed, or now contemplated to be employed, by the Borrower or any Restricted Subsidiary infringes upon, misappropriates or otherwise violates any rights held by any other Person, except where such infringement, misappropriation or other violation would not reasonably be expected to have a Material Adverse Effect. Section 5.17Solvency . As of the Closing Date, immediately after giving effect to the consummation of the Transactions, the Borrower and its Subsidiaries on a consolidated basis are Solvent. Section 5.18Collateral Documents . The provisions of the applicable Collateral Documents are effective to create in favor of the Administrative Agent for the benefit of the Secured Parties a legal, valid and enforceable first priority Lien subject, in the case of any Collateral (other than Collateral consisting of Equity Interests), to Permitted Liens, and with respect to Collateral consisting of Equity Interests, subject to Liens permitted pursuant to Sections 7.01(a) and (y) and non- consensual Liens permitted by Section 7.01 (collectively, such Liens, “Permitted Prior Liens”), on all right, title and interest of the respective Loan Parties in the Collateral described therein. Section 5.19Anti-Terrorism; Anti-Money Laundering; Etc. The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance in all material respects by the Borrower, its Restricted Subsidiaries and their respective directors, officers, and employees with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Restricted Subsidiaries and, to the Borrower’s knowledge, its and its Restricted Subsidiaries’ respective officers and directors, are in 122
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compliance with Anti-Corruption Laws in all material respects and applicable Sanctions in all material respects and are not knowingly engaged in any activity that would reasonably be expected to result in the Borrower being designated as a Sanctioned Person. No Loan Party nor any of its Restricted Subsidiaries (i) is an “enemy” or an “ally of the enemy” within the meaning of Section 2 of the Trading with the Enemy Act of the United States (50 U.S.C. App. §§ 1 et seq.), (ii) is in violation in any material respect of (A) the Trading with the Enemy Act, (B) any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V) or any enabling legislation or executive order relating thereto, (C) the Act or (D) any other laws relating to terrorism or money laundering (collectively, the “Anti-Terrorism Laws”) or (iii) is a Sanctioned Person. No part of the proceeds of any Loan and no Letter of Credit hereunder will be unlawfully used to fund any operations in, finance any investments or activities in or make any payments to, a Sanctioned Person or a Sanctioned Country, or in any other manner that will result in any violation in any material respect by any Loan Party or any Lender or Arranger, the Administrative Agent or any L/C Issuer of any Anti-Terrorism Laws or Sanctions. Section 5.20Foreign Corrupt Practices Act. No part of the proceeds of the Loans will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of Anti-Corruption Laws. Section 5.21Affected Financial Institution . No Loan Party is an Affected Financial Institution. Article 6.AFFIRMATIVE COVENANTS From and after the Closing Date, so long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other than contingent indemnification obligations as to which no claim has been asserted and obligations and liabilities under Secured Cash Management Agreements and Secured Hedge Agreements) hereunder shall remain unpaid or unsatisfied, or any Letter of Credit (other than Letters of Credit which have been Cash Collateralized or as to which other arrangements satisfactory to the applicable L/C Issuer have been made) shall remain outstanding, the Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02, 6.03, 6.13 and 6.14) cause each Restricted Subsidiary to: Section 6.01Financial Statements . Deliver to the Administrative Agent: (a) within 90 days after the end of each Fiscal Year of the Borrower (commencing with theFiscal Year ending September 30, 2022), a consolidated balance sheet of the Borrower and its Subsidiaries as at theend of such Fiscal Year, and the related consolidated statements of income or operations, changes in Shareholders’Equity, and cash flows for such 123
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Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonabledetail and prepared in accordance with GAAP, audited and accompanied by a report and opinion ofPricewaterhouseCoopers LLP or any other independent certified public accountant of nationally recognizedstanding, which report and opinion shall be prepared in accordance with generally accepted auditing standards andshall not be subject to any “going concern” qualification, “going concern” exception or “going concern”explanatory paragraph (other than a “going concern” qualification, exception or explanatory paragraph resultingsolely from an upcoming maturity date under any Indebtedness occurring within one year from the time suchopinion is delivered) or any qualification or exception paragraph as to the scope of such audit; provided, that if theassets, liabilities, income, results of operations, cash flow, or any other information of or with respect to anyUnrestricted Subsidiary is included in any of the foregoing financial statements, the foregoing financialstatements are accompanied by a reconciliation that explains or otherwise shows in reasonable detail thedifferences between the information relating to the Borrower and its Subsidiaries, on the one hand, and theinformation relating to the Borrower and its Restricted Subsidiaries on a standalone basis, on the other hand; (b) in connection with each of the first three fiscal quarters of each Fiscal Year of the Borrower(commencing with the fiscal quarter ending March 31, 2022), within 45 days after the end of each such fiscalquarter, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, therelated consolidated statements of income or operations for such fiscal quarter and for the portion of the Borrower’sFiscal Year then ended, and the related consolidated statements of changes in Shareholders’ Equity, and cash flowsfor the portion of the Borrower’s Fiscal Year then ended, in each case setting forth in comparative form, asapplicable, the figures for the corresponding fiscal quarter of the previous Fiscal Year and the correspondingportion of the previous Fiscal Year, all in reasonable detail, certified by the chief executive officer, chief financialofficer, chief accounting officer, treasurer or controller of the Borrower as fairly presenting, in all material respects,the financial condition, results of operations, Shareholders’ Equity and cash flows of the Borrower and itsSubsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence offootnotes; provided, that if the assets, liabilities, income, results of operations, cash flow, or any otherinformation of or with respect to any Unrestricted Subsidiary is included in any of the foregoing financialstatements, the foregoing financial statements are accompanied by a reconciliation that explains or otherwiseshows in reasonable detail the differences between the information relating to the Borrower and its Subsidiaries, onthe one hand, and the information relating to the Borrower and its Restricted Subsidiaries on a standalone basis, onthe other hand (the “Quarterly Financial Statements”); and (c) not later than 60 days after the end of each Fiscal Year of the Borrower (commencing withthe Fiscal Year ending September 30, 2022), an annual budget of the Borrower and its Restricted Subsidiaries on aconsolidated basis consisting of consolidated balance sheets and statements of income or operations and cash flowsof the Borrower and its Restricted Subsidiaries on a quarterly basis for the then-current Fiscal Year (including theFiscal Year in which the Latest Maturity Date occurs, if such Fiscal Year is the then-current Fiscal Year). As to any information contained in materials furnished pursuant to Section 6.02(c), the Borrower shall not be required separately to furnish such information under Section 6.01(a) or (b), but the foregoing shall not be in derogation of the obligation of the Borrower to furnish the information and materials described in Section 6.01(a) or (b) at the times specified therein. Section 6.02Certificates; Other Information 124
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. Deliver to the Administrative Agent, in form and detail reasonably satisfactory to the Administrative Agent: (a) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and(b), a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer,controller or other officer of the Borrower; (b) promptly after any request by the Administrative Agent or the Required Lenders actingthrough the Administrative Agent, copies of any detailed audit reports, management letters or recommendationssubmitted to the board of directors (or the audit committee of the board of directors) of the Borrower byindependent accountants in connection with the accounts or books of the Borrower or any Restricted Subsidiary, orany audit of any of them; (c) promptly after the same are available, copies of each annual report, proxy or financialstatement or other report or communication sent to the shareholders of the Borrower, and copies of all annual,regular, periodic and special reports and registration statements which the Borrower may file or be required to filewith the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, whether or not otherwise requiredto be delivered to the Administrative Agent pursuant hereto; provided that to the extent any such documents arefiled with the SEC, such documents shall be deemed delivered pursuant to this Section 6.02(c) at the time of and solong as the Borrower notifies the Administrative Agent (by facsimile or electronic mail) of the filing with the SECof any such documents; and (d) promptly, such additional information regarding the business, financial or corporate affairs ofthe Borrower or any Restricted Subsidiary, or compliance with the terms of the Loan Documents, as theAdministrative Agent or the Required Lenders, through the Administrative Agent, may from time to timereasonably request. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (1) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website, on the Internet at the website address listed on Schedule 10.02 or (2) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent). The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers and the Co- Managers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information within the meaning of United States federal securities laws (“MNPI”) with respect to the Borrower or its Subsidiaries, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean 125
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that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the Co- Managers, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any MNPI with respect to the Borrower or its Subsidiaries, or their respective securities (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information” (and the Administrative Agent agrees that only Borrower Materials marked “PUBLIC” will be made available on such portion of the Platform); and (z) the Administrative Agent, the Co-Managers and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform that is not designated “Public Side Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower materials “PUBLIC.” Section 6.03Notices . Promptly notify the Administrative Agent when a Responsible Officer of the Borrower has knowledge: (a) of the occurrence of any Default; (b) of any matter that has resulted or would reasonably be expected to result in a MaterialAdverse Effect, including (i) breach or non-performance of, or any default under, a Contractual Obligation of theBorrower or any Restricted Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension betweenthe Borrower or any Restricted Subsidiary and any Governmental Authority, including in connection with any taxliabilities, assessments, governmental charges or levies upon it or its properties or assets; and (iii) thecommencement of, or any material development in, any litigation or proceeding affecting the Borrower or anyRestricted Subsidiary, including pursuant to any applicable Environmental Laws; (c) of the occurrence of any ERISA Event that, alone or together with any other ERISA Eventsthat have occurred or are reasonably expected to occur, would reasonably be expected to result in a MaterialAdverse Effect; or (d) of the incurrence or issuance of any Indebtedness for which the Borrower is required to makea mandatory prepayment pursuant to Section 2.05(b)(i). Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document, if any, that have been breached. Section 6.04Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.04 or Section 7.05; (b) maintain all rights, privileges, permits, and licenses 126
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reasonably necessary in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; (c) preserve, maintain, renew and keep in full force and effect all of its registered patents, trademarks, trade names, trade dress and service marks, the failure of which to so preserve, maintain, renew or keep in full force and effect could reasonably be expected to have a Material Adverse Effect; and (d) pay, discharge or otherwise satisfy as the same shall become due and payable all Federal, state and other Tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Borrower or such Restricted Subsidiary, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect. Section 6.05Maintenance of Properties . (a) Maintain, preserve and protect all of its properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted, and (b) make all necessary repairs thereto and renewals and replacements thereof, in each case with respect to clauses (a) and (b) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect. Section 6.06Maintenance of Insurance . Maintain with financially sound and reputable insurance companies (that are not Affiliates of the Borrower) insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons, and providing for not less than 30 days’ prior notice to the Administrative Agent of termination, lapse or cancellation of such insurance, which insurance (except as to Excluded Subsidiaries and Immaterial Subsidiaries) shall name the Administrative Agent as loss payee (in the case of casualty insurance) or additional insured (in the case of liability insurance); provided, however, if any insurance proceeds are paid on account of a casualty to assets or properties of any Loan Party constituting Collateral and at such time no Event of Default shall have occurred and is continuing, then the Administrative Agent shall take such actions, including endorsement, to cause any such insurance proceeds to be promptly remitted to the Borrower to be used by the Borrower or such Loan Party in any manner not prohibited by this Agreement. Section 6.07Compliance with Laws . Comply with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect. Maintain in effect and enforce policies and procedures designed to ensure compliance in all material respects by the Borrower 127
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and its Restricted Subsidiaries and their respective directors, officers, and employees with Anti-Corruption Laws and applicable Sanctions. Section 6.08Books and Records . Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions, and, if and to the extent required by GAAP, matters involving the assets and business of the Borrower or such Restricted Subsidiary, as the case may be. Section 6.09Inspection Rights . Permit representatives and independent contractors of the Administrative Agent to visit and inspect any of its properties, to examine its corporate, financial and operating records, and to make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, at such reasonable times during normal business hours and as often as may be reasonably desired (but in no event more than one time per Fiscal Year of the Borrower and with the Borrower being required to pay all reasonable out-of-pocket expenses for one visit each Fiscal Year) by the Administrative Agent, upon reasonable advance notice to the Borrower; provided, however, that when an Event of Default exists the Administrative Agent (or any of its respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and without advance notice, and without limitation as to frequency. Section 6.10Use of Proceeds . Use the proceeds of the Credit Extensions (a) to pay any fees, costs and expenses related to the Transactions or the First Amendment and the transactions contemplated thereby, (b) for the Refinancing and the refinancing of the Original Revolving Credit Commitments, and (c) for working capital, acquisitions, Investments, inter-company transactions and for other general corporate purposes (including the payment of merger consideration as contemplated by the Transaction Agreement (the “Transaction Merger Consideration”) and repurchases of shares and repurchases and redemptions of debt) not in contravention of any Law or of any Loan Document. Section 6.11 Covenant to Guarantee Obligations and Give Security . Upon the formation or acquisition by any Loan Party of any new direct or indirect Subsidiary (other than any Excluded Subsidiary or any Immaterial Subsidiary), or upon a Subsidiary of any Loan Party ceasing to be an Excluded Subsidiary or ceasing to be an Immaterial Subsidiary, as applicable, the Borrower shall, at the Borrower’s expense: (i) within 30 days (as such time may be extended by the Administrative Agent in itsreasonable discretion) following the creation or acquisition of such Subsidiary or following such Subsidiaryceasing to be an Excluded Subsidiary or ceasing to be an Immaterial Subsidiary, as applicable, cause suchSubsidiary to (a) become a Guarantor and provide the Administrative Agent, for the benefit of the SecuredParties, a Lien on its assets (other than Excluded Assets) to secure the Obligations by 128
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executing and delivering to the Administrative Agent a joinder to the Collateral Agreement or such otherdocument as the Administrative Agent shall deem appropriate for such purpose and (b) deliver to theAdministrative Agent such other customary documentation reasonably requested by the AdministrativeAgent including, without limitation, favorable opinions of counsel to such Person (which shall cover,among other things, the legality, validity, binding effect and enforceability of the documentation referred toin clause (a)), all in form, content and scope reasonably satisfactory to the Administrative Agent; (ii) within 30 days after such formation or acquisition or after such Subsidiary ceases tobe an Excluded Subsidiary or ceases to be an Immaterial Subsidiary, as applicable, cause each direct andindirect parent (to the extent such parent is a Loan Party) of such Subsidiary to pledge its interests in suchSubsidiary to the Administrative Agent, for the benefit of the Secured Parties, to secure such parent’sObligations (if it has not already done so) and deliver to the Administrative Agent all certificated EquityInterests of such Subsidiary (if any) together with transfer powers in respect thereof endorsed in blank, andcause such Subsidiary: (A) to duly execute and deliver to the Administrative Agent, for the benefit of theSecured Parties, any additional collateral and security agreements or supplements thereto, asreasonably specified by and in form and substance reasonably satisfactory to the AdministrativeAgent to secure payment of all the Obligations of such Subsidiary and constituting Liens on thepersonal property (other than Excluded Assets) of such Subsidiary; and (B) to take whatever action (including the filing of UCC financing statements)may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in theAdministrative Agent (or in any representative of the Administrative Agent designated by it) validand subsisting first priority perfected Liens on Collateral purported to be subject to the CollateralAgreement and other agreements delivered pursuant to this Section 6.11, subject to Permitted PriorLiens; and (iii) within 30 days after such formation or acquisition or after such Subsidiary ceases tobe an Excluded Subsidiary or ceases to be an Immaterial Subsidiary, as applicable, deliver to theAdministrative Agent, upon the request of the Administrative Agent, a signed copy of a favorable opinion,addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Partiesreasonably acceptable to the Administrative Agent as to the matters contained in clauses (i) and (ii) above,and as to such other matters as the Administrative Agent may reasonably request. (iv) Notwithstanding any of the foregoing to the contrary or Section 6.15 below, (i) the Collateral shall exclude Excluded Assets, and shall be subject to the limitations and exclusions set forth in the applicable Collateral Documents, and (ii) no Foreign Subsidiary shall be required to become a Guarantor or grant a Lien on any of its assets (other than a pledge of Equity Interests in any of its Subsidiaries pursuant to clause (ii) above to the extent otherwise required hereunder (provided, however, no legal opinions of foreign counsel shall be required)) to secure any of the Obligations. Section 6.12Compliance with Environmental Laws 129
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. Comply, and cause all lessees and other Persons operating or occupying its owned properties to comply, with all applicable Environmental Laws and Environmental Permits, except where the failure to so comply would not reasonably be likely to have a Material Adverse Effect; and, if ordered by a final decree to do so by a Governmental Authority or otherwise required in the reasonable opinion of the Borrower pursuant to any Environmental Law, conduct any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other action reasonably necessary to address, and to be in material compliance with, such final decree or the material requirements of Environmental Laws; provided, however, that neither the Borrower nor any of its Restricted Subsidiaries shall be required to undertake any such ordered or required cleanup, removal, remedial or other action to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being maintained with respect to such circumstances in accordance with GAAP. Section 6.13Environmental Disclosure . The Borrower will deliver to the Administrative Agent: (a)as soon as practicable following receipt thereof, copies of all environmental audits, investigations, analyses and reports of any kind or character, whether prepared by personnel of the Borrower or any of its Restricted Subsidiaries or by independent consultants, Governmental Authorities or any other Persons, with respect to significant environmental matters at the Borrower’s or any other Loan Party’s real property or with respect to any Environmental Claims, in each case, that would reasonably be expected to have a Material Adverse Effect; (b) promptly following the occurrence thereof, written notice describing in reasonable detail (A) any Release required to be reported by the Borrower or any of its Restricted Subsidiaries to any federal, state or local governmental or regulatory agency under any Environmental Laws that would reasonably be expected to have a Material Adverse Effect, (B) any remedial action taken by the Borrower or any of its Restricted Subsidiaries or any other Persons of which the Borrower or any of its Restricted Subsidiaries has knowledge in response to (1) any Hazardous Materials Activities, the existence of which has a reasonable possibility of resulting in one or more Environmental Claims that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (2) any Environmental Claims that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect and (C) the Borrower’s discovery of any occurrence or condition arising under Environmental Law or relating to Hazardous Materials on any real property adjoining or in the vicinity of any facility that reasonably would be expected to have a Material Adverse Effect; (c)as soon as practicable following the sending or receipt thereof by the Borrower or any of its Restricted Subsidiaries, a copy of any and all non-privileged written communications with respect to (A) any Environmental Claims that, individually or in the aggregate, would reasonably be expected to give rise to a Material Adverse Effect, (B) any Release required to be reported by the Borrower or 130
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any of its Restricted Subsidiaries to any federal, state or local governmental or regulatory agency that would reasonably be expected to have a Material Adverse Effect, and (C) any request made to the Borrower or any of its Restricted Subsidiaries for information from any governmental agency that suggests such agency is investigating whether the Borrower or any of its Restricted Subsidiaries may be potentially responsible for any Hazardous Materials Activity which would reasonably be expected to have a Material Adverse Effect; (d) prompt written notice describing in reasonable detail (A) any proposed acquisition of stock, assets, or property by the Borrower or any of its Restricted Subsidiaries that would reasonably be expected to expose the Borrower or any of its Restricted Subsidiaries to, or result in, Environmental Claims that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and (B) any proposed action to be taken by the Borrower or any of its Restricted Subsidiaries to modify current operations in a manner that could subject the Borrower or any of its Restricted Subsidiaries to any additional obligations or requirements under any Environmental Law that would reasonably be expected to have a Material Adverse Effect; and (e)with reasonable promptness, such other documents and information as from time to time may be reasonably requested by the Administrative Agent in relation to any matters disclosed pursuant to this Section 6.13. Section 6.14Lender Calls . If requested in writing by the Administrative Agent, participate in an annual meeting of the Administrative Agent and the Lenders to be held at the Borrower’s corporate offices (or at such other location as may be agreed to by the Borrower and the Administrative Agent, including by telephonic conference calls) at such time as may be agreed to by the Borrower and the Administrative Agent; provided that if, at any point, the Borrower is no longer required to file periodic reports under the Exchange Act, the Borrower shall be required to invite the Lenders to participate in any quarterly conference calls made available to the holders of any of the Senior Notes (although the Borrower shall have no obligation to hold any such quarterly conference calls). Section 6.15Further Assurances . Promptly following a request by the Administrative Agent or the Required Lenders through the Administrative Agent, (a) correct any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record, re- record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) to the fullest extent permitted by applicable law, subject any Loan Party’s properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Collateral 131
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Documents or Section 6.11, (iii) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of its Restricted Subsidiaries is or is to be a party, and cause each of its Restricted Subsidiaries to do so; provided that, notwithstanding the foregoing, the Loan Parties shall not be required to take actions to create or perfect the security interest of the Administrative Agent (x) on any property that is covered by a certificate of title statute of any jurisdiction under the law of which the indication of a security interest on such certificate is required as a condition of perfection thereof, or (y) if recordation of a security interest with the Federal Aviation Administration or the International Registry of Mobile Assets is required as a condition of perfection thereof. Section 6.16[Reserved] . Section 6.17Designation of Restricted and Unrestricted Subsidiaries. The Borrower may designate any Restricted Subsidiary to be an Unrestricted Subsidiary in accordance with the definition of “Unrestricted Subsidiary”; provided that (i) immediately before and after giving effect to such designation, no Event of Default shall have occurred and be continuing, (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 7.11, and (iii) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” as defined in any of the Senior Notes. All outstanding Investments owned by the Borrower and its Restricted Subsidiaries in the designated Unrestricted Subsidiary will be treated as an Investment by the Borrower or such Restricted Subsidiary, as applicable, made at the time of the designation. The amount of all such outstanding Investments will be the aggregate fair market value of such Investments at the time of the designation. The designation will not be permitted if such Investment would not be permitted under Section 7.02 at that time and if such Restricted Subsidiary does not otherwise meet the definition of an Unrestricted Subsidiary. Any designation of a Subsidiary of the Borrower as an Unrestricted Subsidiary shall be evidenced to the Administrative Agent by delivering to the Administrative Agent a certificate signed by a Responsible Officer of the Borrower certifying that such designation complied with the foregoing conditions and the conditions set forth in the definition of “Unrestricted Subsidiary” and was permitted by this Section 6.17, provided, however, (i) no Subsidiary may be designated as an Unrestricted Subsidiary if such designated Unrestricted Subsidiary will own any IP Rights and the failure of the Borrower or any of its Restricted Subsidiaries to own such IP Rights could reasonably be expected to have a Material Adverse Effect and (ii) neither the Borrower nor any of its Restricted Subsidiaries shall be permitted to contribute or dispose of any IP Rights to an Unrestricted Subsidiary if (x) the failure by the Borrower or any of its Restricted Subsidiaries to own such IP Rights could reasonably be expected to have a Material Adverse Effect or (y) after giving effect 132
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to such contribution or disposition the Borrower would not be in pro forma compliance with the covenant set forth in Section 7.11. If, at any time, any Unrestricted Subsidiary would fail to meet any of the requirements of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Agreement and (1) any Indebtedness of such Subsidiary, (2) any Liens of such Subsidiary and (3) any Investments of such Subsidiary, in each case shall be deemed to be incurred by a Restricted Subsidiary of the Borrower as of such date and, if such Liens, Investments, or Indebtedness are not permitted to be incurred as of such date under Section 7.01, Section 7.02 or Section 7.03, as applicable, the Borrower shall be in default of such Section 7.01, Section 7.02 or Section 7.03, as applicable. The Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence, on the date of designation, of Indebtedness, Liens and Investments by a Restricted Subsidiary of the Borrower of any outstanding Indebtedness, Liens and Investments of such Unrestricted Subsidiary and such designation shall only be permitted if (1) such Liens are permitted under Section 7.01, such Investments are permitted under Section 7.02, and such Indebtedness is permitted under Section 7.03; and (2) no Event of Default under Sections 8.01(a), (f) and (g) shall have occurred and be continuing. Article 7. NEGATIVE COVENANTS From and after the Closing Date, so long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other than contingent indemnification obligations as to which no claim has been asserted and obligations and liabilities under Secured Cash Management Agreements and Secured Hedge Agreements) hereunder shall remain unpaid or unsatisfied, or any Letter of Credit (other than Letters of Credit which have been Cash Collateralized or as to which other arrangements satisfactory to the L/C Issuer have been made) shall remain outstanding, the Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly: Section 7.01Liens . Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following: (a) Liens pursuant to any Loan Document securing the Obligations; (b) Liens existing on the Closing Date and listed on Schedule 7.01 and any modifications,replacements, renewals or extensions thereof; provided that (i) the Lien does not extend to any additional propertyother than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien and (B)proceeds and products thereof, and (ii) the modification, replacement, renewal or extension of the obligationssecured or benefited thereby, to the extent constituting Indebtedness, is permitted by Section 7.03(b); 133
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(c) Liens for taxes (i) which are (x) not then more than 30 days overdue or (y) being contested ingood faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto aremaintained on the books of the applicable Person in accordance with GAAP or (ii) with respect to which the failureto make payment would not reasonably be expected to have a Material Adverse Effect; (d) carriers’, warehousemen’s, landlords’, mechanics’, materialmen’s, repairmen’s or other likeLiens granted or arising in the ordinary course of business (i) which secure amounts not overdue for a period ofmore than 60 days or if more than 60 days overdue, are unfiled and either no other action has been taken to enforcesuch Lien or such Liens are being contested in good faith and by appropriate proceedings diligently conducted, ifadequate reserves with respect thereto are maintained on the books of the applicable Person in accordance withGAAP or (ii) with respect to which the failure to make payment could not reasonably be expected to have aMaterial Adverse Effect; (e) pledges or deposits in the ordinary course of business in connection with workers’compensation, unemployment insurance and other social security legislation, other than any Lien imposed byERISA; (f) deposits to secure the performance of bids, trade contracts and leases (other thanIndebtedness for borrowed money), statutory obligations, surety, stay, customs and appeal bonds, performancebonds and other obligations of a like nature incurred in the ordinary course of business; (g) easements, rights-of-way, restrictions (including zoning restrictions), encroachments,protrusions and other similar encumbrances and minor title defects affecting real property which, in the aggregate,do not materially interfere with the ordinary conduct of the business of the applicable Person; and Liens securingobligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocaleasement or similar agreements entered into in the ordinary course of business of the Borrower and its Subsidiaries; (h) Liens securing judgments, awards and decrees for the payment of money not constituting anEvent of Default under Section 8.01(h) or securing appeal or other surety bonds related to such judgments; (i) (i) Liens securing Indebtedness permitted under Section 7.03(e); provided that (A) suchLiens do not at any time encumber any property (except for replacements, additions and accessions to suchproperty) other than the property financed by such Indebtedness and (B) the Indebtedness secured thereby does notexceed the cost or fair market value of the property, whichever is lower, being acquired on the date of acquisition,improvements thereto and related expenses; provided that individual financings of equipment provided by onelender may be cross collateralized to other financings of equipment provided by such lender on customary terms;and (ii) Liens securing Indebtedness permitted under Section 7.03(t); provided that (w) such Liens existed on theproperty or asset prior to the acquisition thereof by the Borrower or any Restricted Subsidiary or existed on theproperty or asset of any Person that becomes a Restricted Subsidiary in connection with a Permitted Acquisition orother Investment in the nature of an acquisition; (x) such Lien is not created in connection with such acquisition orsuch Person becoming a Restricted Subsidiary as a result of such Investment, as the case may be and (y) such Lienshall not encumber any other property or assets of the Borrower or any Restricted Subsidiary (other than anyPerson acquired by the Borrower or any Restricted Subsidiary as a result of a Permitted Acquisition or otherInvestment in the nature of an acquisition and any Restricted Subsidiary of such acquired Person as of the date ofsuch Permitted Acquisition or other Investment in the nature of an acquisition); 134
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(j) leases, licenses, subleases or sublicenses granted to others in the ordinary course of businesswhich do not (i) interfere in any material respect with the business of the Borrower or any Restricted Subsidiary or(ii) secure any Indebtedness; (k) other Liens on property securing Indebtedness and other obligations in an aggregateprincipal amount outstanding at any time which does not exceed the greater of $125,000,000250,000,000 and 50%of Consolidated EBITDA based on the Most Recent Financial Statements, in the aggregate; (l) Liens on property of Restricted Subsidiaries that are not Loan Parties securing Indebtednessof such Restricted Subsidiaries that are not Loan Parties permitted by Section 7.03; (m) Liens arising in connection with a Qualified Receivables Transaction on ReceivablesProgram Assets permitted to be Disposed of pursuant to Section 7.05(l) securing Receivables Program Obligationspermitted by Section 7.03(j); (n) Liens in favor of custom and revenue authorities arising as a matter of law to secure paymentof non-delinquent customs duties in connection with the importation of goods; (o) Liens upon specific items of inventory or other goods and proceeds of any Person securingsuch Person’s obligations in respect of letters of credit and bankers’ acceptances issued or created for the account ofsuch Person to facilitate the purchase, shipment or storage of such inventory or other goods; (p) (i) Liens arising out of conditional sale, consignment, title retention or similar arrangementsfor the sale of goods entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course ofbusiness and (ii) purported Liens evidenced by the filing of UCC financing statements relating solely to operatingleases or consignment or bailee arrangements entered into in the ordinary course of business; (q) Liens (i) of a collection bank arising under Section 4-210 of the UCC on items in the courseof collection; (ii) attaching to commodity trading accounts or other commodity brokerage accounts incurred in theordinary course of business; and (iii) in favor of banking institutions arising as a matter of law encumberingdeposits (including the right of set-off) and which are within the general parameters customary in the bankingindustry; (r) deposits made in the ordinary course of business to secure liability to insurance carriers, andLiens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto; (s) Liens on Cash Collateral granted in favor of any Lenders and/or L/C Issuers created as aresult of any requirement or option to Cash Collateralize pursuant to this Agreement; (t) Liens that are customary contractual rights of setoff (i) relating to the establishment ofdepository relations with banks or other financial institutions not given in connection with the incurrence ofIndebtedness; (ii) relating to pooled deposit or sweep accounts of the Borrower or any of its Restricted Subsidiariesto permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borroweror any of its Restricted Subsidiaries; or (iii) relating to purchase orders and other agreements entered into withcustomers of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business; 135
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(u) (i) zoning, building, entitlement and other land use regulations by Governmental Authoritieswith which the normal operation of the business complies except for such noncompliance that does not materiallyinterfere with the ordinary conduct of the business of the Borrower or any of its Restricted Subsidiaries; and (ii)any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate theuse of any real property that does not materially interfere with the ordinary conduct of the business of the Borroweror any of its Restricted Subsidiaries; (v) Liens solely on any cash earnest money deposits made by the Borrower or any of itsRestricted Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder; (w) licenses and sublicenses of IP Rights, and Liens under licensing agreements for the use ofintellectual property, in each case, either entered into in the ordinary course of business or pursuant to a bona fidetransaction intended or expected to increase, maintain or preserve, or prevent a decrease in, the revenue, profits,cash flow, or value of the Borrower and its Restricted Subsidiaries, taken as a whole, and which could notreasonably be expected to have a Material Adverse Effect; (x) Liens on cash and Cash Equivalents in an aggregate amount outstanding at any time not toexceed the greater of $100,000,000200,000,000 and 40% of Consolidated EBITDA based on the Most RecentFinancial Statements to secure obligations of the Borrower or any Restricted Subsidiary in respect of ordinarycourse cash management arrangements or under Swap Contracts, in each case, that do not constitute Obligations; (y) Liens on Collateral securing obligations under the documentation for Indebtedness permittedpursuant to Section 7.03(s); provided that, if such indebtedness is secured by any or all of the Collateral, such Liensshall be subject to the Pari Passu Intercreditor Agreement, and (if then in effect) the Junior Lien IntercreditorAgreement if such indebtedness is secured on a pari passu basis (without regard to the control of remedies) with theObligations and, otherwise, to the Junior Lien Intercreditor Agreement; (z) Liens arising in the ordinary course of business under the Perishable AgriculturalCommodities Act of 1930; (aa) Liens on Equity Interests in joint ventures or Unrestricted Subsidiaries (i) securingobligations of such joint ventures or Unrestricted Subsidiaries or (ii) pursuant to the relevant joint ventureagreement or arrangements; (ab) Liens arising out of sale and lease-back transactions permitted under Section 7.15; (ac) Liens (i) in favor of the Borrower or any Loan Party granted by a Restricted Subsidiary thatis not a Loan Party or (ii) granted by any non-Loan Party in favor of any other non-Loan Party, in the case of eachof clauses (i) and (ii), securing intercompany Indebtedness permitted under Section 7.02 or Section 7.03; (ad) Liens on cash or Cash Equivalents in respect of ordinary course cash managementarrangements; (ae) ground leases in respect of real property on which facilities owned or leased by the Borroweror any of its Restricted Subsidiaries are located; 136
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(af) Liens on fee owned real property and related improvements and fixtures or other assets notconstituting Collateral which secure Indebtedness in an aggregate principal amount outstanding at any time not toexceed the greater of $30,000,00060,000,000 and 12.00% of Consolidated EBITDA; and (ag) Liens securing Indebtedness permitted under Section 7.03(aa); provided that such Liens donot at any time encumber any property other than assets owned by such Restricted Subsidiary and its Subsidiariesincurring such Indebtedness permitted under Section 7.03(aa). Section 7.02Investments . Make any Investments, except: (a) Investments held by the Borrower or such Restricted Subsidiary in the form of cash and CashEquivalents; (b) advances to officers, directors, employees and consultants of the Borrower and RestrictedSubsidiaries (i) in an aggregate amount not to exceed $5,000,000 at any time outstanding, for payroll, salary, travel,entertainment, relocation and analogous ordinary business purposes; and (ii) in connection with such Person’spurchase of Equity Interests of the Borrower, provided that no cash is actually advanced pursuant to this clause (ii)unless promptly repaid; (c) Investments (i) existing on the Closing Date in Subsidiaries existing on the Closing Date;provided that in the case of this clause (i), any such Investments in Restricted Subsidiaries that are not Loan Partiesin the form of intercompany loans by Loan Parties if in excess of $10,000,00015,000,000 in the aggregate shall beevidenced by notes that have been pledged (individually or pursuant to a global note) to the Administrative Agentin form and substance reasonably satisfactory to the Administrative Agent for the benefit of the Secured Partiesunless such pledge would, in the good faith judgment of the Borrower, result in adverse tax consequences to theBorrower and its Restricted Subsidiaries as reasonably determined by Borrower in consultation with theAdministrative Agent; (ii) in Loan Parties (including those formed or acquired after the Closing Date so long as theBorrower and its Restricted Subsidiaries comply with the applicable provisions of Section 6.11, provided that,notwithstanding anything to the contrary in this Agreement or any other Loan Document, the Lien of theAdministrative Agent for the benefit of the Secured Parties shall not attach to any such Investment in the form of anintercompany loan and any intercompany note evidencing such loan shall not be required to be delivered to theAdministrative Agent if any such note is subsequently reasonably promptly contributed to a Subsidiary that is not aLoan Party pursuant to Section 7.02(c)(iv)); (iii) by Restricted Subsidiaries that are not Loan Parties in RestrictedSubsidiaries that are not Loan Parties; and (iv) by the Borrower or any other Loan Party in UnrestrictedSubsidiaries, in Restricted Subsidiaries that are not Loan Parties or in other Persons; provided that, in the case ofthis clause (iv), (A) no Event of Default under Sections 8.01(a), 8.01(f) or 8.01(g) shall have occurred and becontinuing, (B) the Borrower and its Restricted Subsidiaries comply with the applicable provisions of Section 6.11,(C) the aggregate amount of all such Investments outstanding at any time (determined without regard to any write-downs or write-offs of such Investments) shall not exceed the greater (x) of $100,000,000200,000,000 and (y) 40%of Consolidated EBITDA based on the Most Recent Financial Statements; provided, that this clause (C) shall notapply to any such Investment in a Restricted Subsidiary that is not a Loan Party that is in the form of an equitycontribution or intercompany loan if, reasonably promptly following receipt of such equity contribution orintercompany loan, the proceeds of such equity contribution or intercompany loan shall be used by such RestrictedSubsidiaries that are not Loan Parties (or Restricted Subsidiaries thereof) to consummate a Permitted Acquisition(and any such 137
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Investment described in this proviso shall not utilize the basket set forth in this clause (C), but shall, if applicable,utilize the basket set forth in the definition of Permitted Acquisition) and (D) any such Investments in the form ofintercompany loans if in excess of $10,000,00015,000,000 in the aggregate shall be evidenced by notes that havebeen pledged (individually or pursuant to a global note) to the Administrative Agent in form and substancereasonably satisfactory to the Administrative Agent for the benefit of the Secured Parties unless (x) such pledgewould, in the good faith judgment of the Borrower, result in adverse tax consequences to the Borrower and itsRestricted Subsidiaries as reasonably determined by Borrower in consultation with the Administrative Agent or (y)reasonably promptly following the making of such intercompany loan the holder of such note representing suchloan contributes such note as an equity contribution to any Restricted Subsidiary that is not a Loan Party that willreasonably promptly following receipt of such equity contribution consummate (or cause one or more of itsRestricted Subsidiaries to consummate) a Permitted Acquisition, in which case and in each such case,notwithstanding anything to the contrary in this Agreement or any other Loan Document, the Lien of theAdministrative Agent for the benefit of the Secured Parties shall not attach to any such note, and any such noteshall not be required to be delivered to the Administrative Agent; (d) Investments consisting of extensions of credit in the nature of accounts receivable or notesreceivable arising from the grant of trade credit in the ordinary course of business, and Investments received insatisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonablynecessary in order to prevent or limit loss; (e) (i) any Investments by the Borrower or any Guarantor in the form of Permitted Acquisitions,and (ii) any Permitted Acquisition by any Restricted Subsidiary that is not a Loan Party (or any RestrictedSubsidiary thereof) funded from, reasonably promptly following receipt thereof, the cash proceeds received by suchRestricted Subsidiary (or any parent entity(ies) thereof that is also a Restricted Subsidiary and that received suchproceeds in accordance with Section 7.02(c)(iv)) from any equity contribution or intercompany loan permittedunder Section 7.02(c)(iv), and (iii) any Investment of any Person acquired by, or merged into or consolidated oramalgamated with, the Borrower or any Restricted Subsidiary after the Closing Date (other than an Investment inconnection with a Permitted Acquisition in Persons who do not become Loan Parties), in each case pursuant to anInvestment otherwise permitted by this Section 7.02 after the Closing Date to the extent that such Investments ofsuch Person were not made in contemplation of or in connection with such acquisition, merger, amalgamation orconsolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation, andany modification, replacement, renewal or extension of any Investment permitted under clause (iii) of this Section7.02(e) so long as any such modification, replacement, renewal or extension thereof does not increase the amountof such Investment except as otherwise permitted by this Section 7.02; (f) Guarantees of Indebtedness permitted by Section 7.03; (g) to the extent constituting Investments, transactions expressly permitted under Sections 7.04(other than Section 7.04(c)) and 7.14; (h) Investments existing on, or made pursuant to legally binding written commitments inexistence on, the Closing Date and set forth on Schedule 7.02 and any modification, replacement, renewal orextension thereof; provided, that the amount of the original Investment is not increased except by the terms of suchInvestment or as otherwise permitted by this Section 7.02 and the terms and conditions of such modified,replacement, renewed or extended Investment shall not be materially less favorable, taken as a whole, to the LoanParties than the Investment being modified, replaced, renewed or extended; 138
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(i) promissory notes, property (tangible or intangible) and other non-cash consideration receivedin connection with Dispositions permitted by Section 7.05; (j) Investments (including debt obligations and Equity Interests) received in connection with thebankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and otherdisputes with, customers and suppliers arising in the ordinary course of business and upon the foreclosure withrespect to any secured Investment or other transfer of title with respect to any secured Investment; (k) Investments to the extent that payment for such Investments is made solely by the issuanceof Equity Interests of the Borrower or a Subsidiary (unless the issuance of Equity Interests in a Subsidiary isprohibited by Section 7.05), in each case, to the extent not resulting in a Change of Control; (l) Restricted Subsidiaries of the Borrower may be established or created if the Borrower andsuch Restricted Subsidiary comply with the requirements of Section 6.11, if applicable; provided that, in each case,to the extent such new Restricted Subsidiary is created solely for the purpose of consummating a transactionpursuant to an acquisition permitted by this Section 7.02, and such new Restricted Subsidiary at no time holds anyassets or liabilities other than any merger or acquisition consideration contributed to it contemporaneously with theclosing of such transactions, such new Restricted Subsidiary shall not be required to take the actions set forth inSection 6.11, as applicable, until the applicable acquisition is consummated (at which time the surviving entity ofthe applicable transaction shall be required to so comply in accordance with the provisions thereof); (m) Investments in a Receivables Subsidiary or any Investment by a Receivables Subsidiary inany other Person, including the payment of Receivables Fees, in each case, (i) in connection with a QualifiedReceivables Transaction and (ii) constituting a Disposition permitted pursuant to Section 7.05(l); (n) Swap Contracts to the extent permitted pursuant to Section 7.03(d); (o) other Investments; provided that in no event shall the aggregate amount of Investmentsallowed pursuant to this Section 7.02(o) during the term of this Agreement exceed the sum of (1) so long as noEvent of Default under Sections 8.01(a), 8.01(f) or 8.01(g) has occurred and is continuing or would be causedthereby, the greater of (x) $125,000,000250,000,000 and (y) 50% of Consolidated EBITDA based on the MostRecent Financial Statements plus (2) an amount not to exceed the Available Amount at the time of the making ofsuch Investment; provided that the portion of the Available Amount attributed to clause (a)(2) of the definitionthereof shall not be available for any such Investments made pursuant to this clause (o)(2) if an Event of Defaultunder Sections 8.01(a), 8.01(f) or 8.01(g) has occurred and is continuing or would be caused thereby; (p) Investments in Term Loans pursuant to Section 10.06(b)(vii); (q) Investments consisting of the licensing or contribution of intellectual property pursuant tojoint marketing arrangements with other Persons; (r) Investments so long as (i) no Event of Default under Sections 8.01(a), 8.01(f) or 8.01(g) hasoccurred and is continuing or would be caused thereby and (ii) the pro forma Total Net Leverage Ratio would beless than 3.75:1.00; (s) Investments (i) constituting deposits, prepayments and other credits to suppliers, (ii) made inconnection with obtaining, maintaining or renewing client and customer 139
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contracts and (iii) in the form of advances made to distributors, suppliers, licensors and licensees, in each case, inthe ordinary course of business or, in the case of clause (iii), to the extent necessary to maintain the ordinary courseof supplies to the Borrower or any Restricted Subsidiary; (t) the Transactions; (u) Investments in any Restricted Subsidiary in connection with reorganizations and relatedactivities related to Tax planning; provided that, after giving effect to any such reorganization and related activities,the Lien of the Administrative Agent in the Collateral and the value thereof, taken as a whole, is not materiallyimpaired and after giving effect to such Investment, the Borrower and its Restricted Subsidiaries shall otherwise bein compliance with Section 6.11; (v) pension fund and other employee benefit plan obligations and liabilities; (w) Investments in the Borrower or any Restricted Subsidiary in connection with intercompanycash management arrangements and related activities in the ordinary course of business; (x) Investments in any Parent Company in amounts and for purposes for which RestrictedPayments by the Borrower are permitted under Section 7.06(e); provided that any such Investments made asprovided above in lieu of such Restricted Payments shall reduce availability under the applicable RestrictedPayment basket under Section 7.06(e); (y) Investments consisting of the licensing or sublicensing of IP Rights in each case, eitherentered into in the ordinary course of business or pursuant to a bona fide transaction intended to increase therevenue of the Borrower and its Restricted Subsidiaries and which could not reasonably be expected to have aMaterial Adverse Effect; and (z) Investments in an Unrestricted Subsidiary to the extent comprised of assets of, or EquityInterests in, an Unrestricted Subsidiary. Section 7.03Indebtedness . Create, incur, assume or suffer to exist any Indebtedness, except: (a) Indebtedness under (A) the Loan Documents, including, without limitation, IncrementalTerm Loans, Incremental Revolving Loans and any Refinancing Facility and (B) the Senior Notes in an aggregateprincipal amount not to exceed $840,000,000 (inclusive of any Permitted Refinancing of the Senior Notes); (b) Indebtedness outstanding on the Closing Date and listed on Schedule 7.03 and any PermittedRefinancing thereof; provided that any such Indebtedness (including any Permitted Refinancing thereof), to theextent owed by a Loan Party to a Restricted Subsidiary that is not a Loan Party, shall be unsecured andsubordinated to the payment of the Obligations in a manner reasonably satisfactory to the Administrative Agent; (c) (i) Guarantees by the Borrower or any Guarantor in respect of Indebtedness otherwisepermitted hereunder of the Borrower or any Guarantor; (ii) Guarantees by any Restricted Subsidiary that is not aLoan Party in respect of Indebtedness otherwise permitted hereunder of the Borrower or any Restricted Subsidiary;and (iii) Guarantees by the Borrower or any Guarantor in respect of Indebtedness otherwise permitted hereunder of 140
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Restricted Subsidiaries that are not Loan Parties to the extent such Guarantee constitutes an Investment permittedby Sections 7.02(c)(i), (c)(iv), 7.02(o) or 7.02(r); (d) obligations (contingent or otherwise) of the Borrower or any Restricted Subsidiary existingor hereafter arising under any Swap Contract; provided that (i) such obligations are (or were) entered into by suchPerson in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities,commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in thevalue of securities issued by such Person, and not for purposes of speculation; and (ii) such Swap Contract does notcontain any provision exonerating the non-defaulting party from its obligation to make payments on outstandingtransactions to the defaulting party (other than pursuant to customary netting or set-off provisions and except ascontemplated by Section 10.23); (e) Indebtedness of the Borrower or any Restricted Subsidiary in respect of Capital Leases andpurchase money obligations for fixed or capital assets, which may be secured by Liens under and within theapplicable limitations set forth in Section 7.01(i); provided, however, that the aggregate principal amount of all suchIndebtedness at any one time outstanding pursuant to this clause (e) shall not exceed the greater of (x)$62,500,000125,000,000 and (y) 25% of Consolidated EBITDA based on the Most Recent Financial Statements; (f) Indebtedness of the Borrower or any Restricted Subsidiary owing to the Borrower or anyRestricted Subsidiary to the extent constituting an Investment permitted by Section 7.02(c), 7.02(o), 7.02(r) or7.02(t); provided that, such Indebtedness, to the extent owed by a Loan Party to a Restricted Subsidiary that is not aLoan Party, shall be subordinated to the payment of the Obligations in a manner reasonably satisfactory to theAdministrative Agent; (g) Non-Guarantor Debt in an aggregate principal amount outstanding under this clause (g),together with the aggregate principal amount outstanding of all Non-Guarantor Debt incurred pursuant toSection 7.03(s), at any time not to exceed the Non-Guarantor Debt Cap; (h) [reserved]; (i) other Indebtedness of the Borrower and its Restricted Subsidiaries in an aggregate principalamount outstanding at any time not to exceed the greater of (x) $125,000,000250,000,000 and (y) 50% ofConsolidated EBITDA based on the Most Recent Financial Statements; (j) Indebtedness in respect of Receivables Program Obligations in an aggregate principalamount outstanding at any time not to exceed the greater of (x) $100,000,000200,000,000 and (y) 40% ofConsolidated EBITDA based on the Most Recent Financial Statements; provided that no Event of Default shallhave occurred and be continuing at the time such Indebtedness is incurred; (k) Indebtedness of the Borrower or any of its Restricted Subsidiaries consisting of obligationsto pay insurance premiums or take-or-pay obligations contained in supply arrangements incurred in the ordinarycourse of business; (l) Indebtedness consisting of obligations of the Borrower or its Restricted Subsidiaries underdeferred consideration or other similar arrangements (including earn-outs, indemnifications, incentive non-competes and other contingent obligations and agreements consisting of the adjustment of purchase price or similaradjustments) incurred by such Person in 141
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connection with any Permitted Acquisition or Disposition permitted by Section 7.05 or any other Investmentpermitted under Section 7.02; (m) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries in respect ofbank guarantees, warehouse receipts or similar instruments (other than letters of credit) issued or created in theordinary course of business consistent with past practice, including in respect of workers compensation claims,health, disability or other employee benefits or property, casualty or liability insurance or self-insurance, or otherIndebtedness with respect to reimbursement type obligations (other than obligations in respect of letters of credit)regarding workers compensation claims; (n) Indebtedness or obligations in respect of performance and completion guaranties, orcustoms, stay, performance, bid, surety, statutory, appeal, performance and return of money bonds, tenders,statutory obligations, leases, governmental contracts, trade contracts or other similar obligations incurred in theordinary course of business and, in each case, not in respect of borrowed money or in respect of any letters ofcredit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoingitems; (o) Indebtedness arising from the honoring by a bank or other financial institution of a check,draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient fundsin the ordinary course of business; provided, however, that such Indebtedness is extinguished within five BusinessDays of incurrence; (p) Indebtedness in respect of commercial credit cards, stored value cards, purchasing cards andtreasury management services, and other netting services, overdraft protections and overdraft facilities, automatedclearing-house arrangements, employee credit card programs, corporate cards and purchasing cards, controlleddisbursement, ACH transactions, return items, interstate depository network service, cash pooling and operationalforeign exchange management, and, in each case, similar arrangements and otherwise in connection with cashmanagement arrangements, including cash management arrangements among the Borrower and its RestrictedSubsidiaries, including Indebtedness arising under or in connection with any Cash Management Agreement with aCash Management Bank; (q) Indebtedness incurred under commercial letters of credit issued for the account of theBorrower or any of its Restricted Subsidiaries in the ordinary course of business (and not for the purpose of,directly or indirectly, incurring Indebtedness or providing credit support or a similar arrangement in respect ofIndebtedness) or Indebtedness of the Borrower or any of its Restricted Subsidiaries under letters of credit and bankguarantees backstopped by Letters of Credit issued under this Agreement; (r) Indebtedness representing deferred compensation to employees of the Borrower or any of itsRestricted Subsidiaries incurred in the ordinary course of business; (s) (A) Indebtedness incurred or issued by the Borrower or by any Restricted Subsidiary of theBorrower in an amount not to exceed in the aggregate the Incremental Available Amount (such debt, “IncrementalEquivalent Debt”); provided that, (i) except when the proceeds of such Incremental Equivalent Debt are being used tofinance in whole or in part a Limited Condition Acquisition, no Event of Default shall exist before or aftergiving effect to the incurrence of such Incremental Equivalent Debt; (ii) such Incremental Equivalent Debt shall not be Guaranteed by any Person that is not aGuarantor; 142
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(iii) if such Incremental Equivalent Debt is in the form of loans secured by any or all ofthe Collateral on a pari passu basis with the Liens securing the Obligations hereunder, such IncrementalEquivalent Debt shall have the benefit of Section 2.14(g)(iv) as if such Incremental Equivalent Debt were aClass of Incremental Term Loans; (iv) other than in the case of customary bridge loans, the terms of such IncrementalEquivalent Debt shall not be more restrictive, taken as a whole, to the Borrower and its RestrictedSubsidiaries than those applicable to any Facility at the time of incurrence of such Incremental EquivalentDebt, unless (x) such other terms apply only after the Latest Maturity Date at the time of incurrence of suchIncremental Equivalent Debt, (y) this Agreement is amended so that such terms are also applicable for thebenefit of any Lenders under the then-existing Facilities or (z) such other terms relate only to pricing, feesor redemption terms; (v) other than in the case of customary bridge loans, (x) if such Incremental EquivalentDebt is secured on a pari passu basis with the Liens securing the Obligations hereunder, the stated maturityof such Incremental Equivalent Debt shall be no earlier than the Latest Maturity Date at the time ofincurrence of such Incremental Equivalent Debt and (i) if there are any Term Loans outstanding at suchtime, the Weighted Average Life to Maturity of such Incremental Equivalent Debt shall be no shorter thanthe remaining Weighted Average Life to Maturity of any then-existing Facility hereunder and (ii) if there areno Term Loans outstanding, the Weighted Average Life to Maturity of such Incremental Equivalent Debtshall be no shorter than 36 months and (y) if such Incremental Equivalent Debt is secured on a junior basisto the Liens securing the Obligations hereunder or is unsecured, the stated maturity of such IncrementalEquivalent Debt is not less than 91 days following the Latest Maturity Date at the time of incurrence ofsuch Incremental Equivalent Debt and the Weighted Average Life to Maturity of such IncrementalEquivalent Debt shall be no shorter than the remaining Weighted Average Life to Maturity of any then-existing Facility hereunder; (vi) the aggregate principal amount outstanding of all Non-Guarantor Debt under thisclause (s), together with the aggregate principal amount outstanding of all Non-Guarantor Debtincurred pursuant to Section 7.03(g),that is Incremental Equivalent Debt does not exceed at any timethe Non-Guarantor Debt Cap; (vii) the Borrower shall deliver or cause to be delivered legal opinions and such otherdocuments reasonably requested by the Administrative Agent in connection with such transaction; and (viii) if such Incremental Equivalent Debt is secured, the representative and collateraltrustee acting on behalf of the holders of such Incremental Equivalent Debt shall have executed anddelivered to the Administrative Agent (x) a joinder to the Pari Passu Intercreditor Agreement and (if then ineffect) the Junior Lien Intercreditor Agreement (if such Incremental Equivalent Debt is secured by any or allof the Collateral on a pari passu basis (without regard to control of remedies) with the Obligationshereunder) in accordance with the terms thereof and (y) a joinder to the Junior Lien Intercreditor Agreement(if such Incremental Equivalent Debt is secured by any or all of the Collateral on a junior basis to theObligations hereunder) in accordance with the terms thereof; provided that if such Indebtedness is the initialissuance of Indebtedness that would cause such documents to be executed, then the Borrower, theGuarantors, the Administrative Agent and the representative and collateral trustee for such IncrementalEquivalent Debtother Indebtedness shall have executed and delivered the Pari Passu 143
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Intercreditor Agreement and/or the Junior Lien Intercreditor Agreement, as applicable and (t) (B) Permitted Refinancing of any Indebtedness incurred under the foregoing clause (A) (provided that any such Permitted Refinancing of any such Indebtedness that was initially incurred in reliance on clause (a) of the definition of Incremental Available Amount (or any Permitted Refinancing thereof) shall continue to be deemed to be a utilization of such clause (a) for purposes hereof unless it shall have been properly reclassified to clause (c) of the definition of Incremental Available Amount); (u) (x) Indebtedness assumed in connection with a Permitted Acquisition or other Investment inthe nature of an acquisition so long as (i) such Indebtedness existed prior to the consummation of such PermittedAcquisition or other Investment in the nature of an acquisition, (ii) such Indebtedness is not created incontemplation of such Permitted Acquisition or other Investment in the nature of an acquisition, (iii) suchIndebtedness is solely the obligation of such Person, and not of the Borrower or any other Restricted Subsidiary(other than any Person acquired by the Borrower or any Restricted Subsidiary as a result of such PermittedAcquisition or other Investment in the nature of an acquisition and any Restricted Subsidiary of such acquiredPerson as of the date of such Permitted Acquisition or other Investment in the nature of an acquisition) and (iv) ifsuch Indebtedness (excluding leases) is secured, the pro forma Secured Net Leverage Ratio would not exceed thegreater of 4.25:1.00 and the Secured Net Leverage Ratio immediately prior to giving effect to such PermittedAcquisition or other Investment in the nature of an acquisition and if such Indebtedness (excluding leases) isunsecured, the pro forma Consolidated Interest Coverage Ratio would be greater than or equal to the lesser of2.00:1.00 and the Consolidated Interest Coverage Ratio immediately prior to giving effect to such PermittedAcquisition or other Investment in the nature of an acquisition or the pro forma Total Net Leverage Ratio would notexceed the greater of 6.00:1.00 and the Total Net Leverage Ratio immediately prior to giving effect to suchPermitted Acquisition or other Investment in the nature of an acquisition, and (y) Permitted Refinancings of anyIndebtedness assumed under the foregoing clause (x); (v) (i) Indebtedness incurred in the ordinary course of business in respect of obligations of theBorrower or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress paymentsin connection with such goods and services, (ii) Indebtedness in respect of any letter of credit, bankers’ acceptance,bank guaranty or similar instrument supporting trade payables, warehouse receipts or similar facilities entered intoin the ordinary course of business, and (iii) Indebtedness consisting of obligations owing under any customer orsupplier incentive, supply, license or similar agreements entered into in the ordinary course of business; (w) unfunded pension fund and other employee benefit plan obligations and liabilities incurred inthe ordinary course of business to the extent that the unfunded amounts would not otherwise cause an Event ofDefault under Section 8.01(i); (x) customer deposits and advance payments received in the ordinary course of business fromcustomers for goods and services purchased in the ordinary course of business; (y) without duplication of any other Indebtedness, all premiums (if any), interest (includingpost-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees,expenses and charges with respect to Indebtedness permitted hereunder; 144
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(z) Indebtedness incurred in connection with sale and leaseback transactions permitted pursuantto Section 7.15; (aa) Indebtedness secured by fee owned real property and related improvements and fixtures orother assets not constituting Collateral in an aggregate principal amount outstanding at any time not to exceed thegreater of $30,000,00060,000,000 and 12.00% of Consolidated EBITDA based on the Most Recent FinancialStatements; and (ab) Indebtedness of any Restricted Subsidiary that is a joint venture in an aggregate principalamount outstanding at any time not to exceed the greater $25,000,00050,000,000 and 10% of ConsolidatedEBITDA based on the Most Recent Financial Statements. Notwithstanding anything to the contrary herein, no Restricted Subsidiary shall be permitted to guarantee any of the Senior Notes or any Permitted Refinancing thereof unless such Restricted Subsidiary also guarantees the Obligations. Section 7.04Fundamental Changes . Except in the case of the consummation of any of the Transactions, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Event of Default exists or would result therefrom: (a) any Subsidiary may merge with (i) the Borrower; provided that the Borrower shall be thecontinuing or surviving Person and (ii) any Subsidiary; provided that (A) when any wholly-owned Subsidiary ismerging with another Subsidiary, a wholly-owned Subsidiary shall be the continuing or surviving Person, (B) whenany Restricted Subsidiary is merging with another Subsidiary, either (I) a Restricted Subsidiary shall be thecontinuing or surviving Person or (II) an Unrestricted Subsidiary shall be the continuing or surviving person (ifsuch Person shall be permitted to be designated as an Unrestricted Subsidiary hereunder (other than pursuant toSection 7.02(g))), (C) when any Guarantor is merging with another Subsidiary, the continuing or surviving Personshall either (I) be a Guarantor or (II) a Loan Party, and (D) if as a result thereof, the Borrower owns, directly orindirectly, less of such Subsidiary’s equity interests than it did prior to the merger, such merger shall also constitutea Disposition subject to Section 7.05 (and must be permitted by any clause thereof other than Section 7.05(d) or (g)(A)); (b) (i) any Subsidiary may merge, amalgamate, liquidate, dissolve or change its form if theBorrower determines in good faith that such merger, amalgamation, liquidation, dissolution or change in form (x) isin the best interests of the Borrower and (y) is not materially disadvantageous to the Lenders; provided that in thecase of a merger, amalgamation, dissolution or liquidation of a Loan Party that results in a distribution of assets to aSubsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply withSection 7.02 and (ii) any Subsidiary may merge, dissolve, liquidate or consolidate, so long as the purpose thereof isto effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(d) or (g)(A)); (c) the Borrower or any Restricted Subsidiary may consummate any Permitted Acquisition orany other Investment permitted by Section 7.02; provided that (i) in any such transaction involving the Borrower,the Borrower shall be the continuing or surviving 145
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Person; and (ii) in any such transaction involving a Guarantor, the continuing or surviving Person shall be aGuarantor or a Loan Party; and (d) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntaryliquidation, dissolution or otherwise) (i) to the Borrower or to a Guarantor; or (ii) if the transferor is not aGuarantor, to any other Restricted Subsidiary; provided in each case that (A) if the transferor in such a transactionis a wholly-owned Subsidiary, then the transferee must either be the Borrower or one or more wholly-ownedSubsidiaries, (B) if the transferor in such a transaction is a wholly-owned Restricted Subsidiary, then the transfereemust either be the Borrower or one or more wholly-owned Restricted Subsidiaries and (C) to the extent that thetransferee is not the Borrower or one or more wholly-owned Restricted Subsidiaries (based on the percentage ofsuch transferee which is not owned directly or indirectly by the Borrower), the Disposition shall constitute aDisposition subject to Section 7.05 and shall be permitted under this Section 7.04 so long as it is permitted by anyclause of Section 7.05 (other than Section 7.05(d) or (g)(A). Section 7.05Dispositions . Make any Disposition or enter into any agreement to make any Disposition, in each case, having a fair market value in excess of the greater of (i) $10,000,00020,000,000 and (ii) 4.00% of Consolidated EBITDA based on the Most Recent Financial Statements in a single transaction or in a related series of transactions, except: (a) Dispositions of surplus, obsolete, used or worn out property, whether now owned or hereafteracquired in the ordinary course of business and Dispositions of property (including, without limitation, real estateand related improvements) no longer used or useful in the conduct of the business of the Borrower and itsRestricted Subsidiaries (including allowing any registrations or any applications for registration of any immaterialintellectual property to lapse or go abandoned); (b) (x) Dispositions of inventory or equipment in the ordinary course of business and (y) theleasing or subleasing of real property in the ordinary course of business; (c) Dispositions of property to the extent that (i) such property is exchanged for credit againstthe purchase price of other property or (ii) the proceeds of such Disposition are reasonably promptly applied to thepurchase price of such replacement property; (d) Dispositions of property by the Borrower to any Restricted Subsidiary, or by any RestrictedSubsidiary to the Borrower or to a Restricted Subsidiary; provided that if the transferor of such property is theBorrower or a Guarantor, the transferee thereof must either be the Borrower or a Guarantor; (e) Dispositions of accounts receivable for purposes of collection or forgiveness or discountingof accounts receivable in the ordinary course of business; (f) Dispositions of investment securities, cash and Cash Equivalents in the ordinary course ofbusiness; (g) (A) Dispositions permitted by Section 7.04 (other than Section 7.04(a)(ii)(D), Section7.04(b) or Section 7.04(d)(ii)(C)); (B) Dispositions that constitute Investments permitted by Section 7.02 (otherthan Section 7.02(g)); and (C) Dispositions that constitute Restricted Payments permitted by Section 7.06; 146
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(h) (i) Dispositions, licensing, sublicensing and cross-licensing arrangements, in each case,involving any technology or IP Rights of the Borrower or any Restricted Subsidiary in each case, either entered intoin the ordinary course of business or pursuant to a bona fide transaction intended to increase the revenue of theBorrower and its Restricted Subsidiaries and which could not reasonably be expected to have a Material AdverseEffect, (ii) the Disposition, abandonment, cancellation or lapse of IP Rights, or any issuances or registrations, orapplications for issuances or registrations, of any IP Rights, which, in the reasonable good faith determination ofthe Borrower or its Restricted Subsidiaries are no longer economically practicable to maintain, worth the cost ofmaintaining, or used or useful in any material respect, (iii) Dispositions of IP Rights through expiration inaccordance with their respective statutory terms, or (iv) Dispositions, licensing, sublicensing and cross-licensingarrangements involving any technology or IP Rights of (A) the Borrower or any Restricted Subsidiary that is aLoan Party to the Borrower or any Restricted Subsidiary that is a Loan Party, or (B) any Restricted Subsidiary thatis not a Loan Party to the Borrower or any Restricted Subsidiary; (i) transfers of condemned property as a result of the exercise of “eminent domain” or othersimilar policies to the respective Governmental Authority or agency that has condemned the same (whether by deedin lieu of condemnation or otherwise), and transfers of property that has been subject to a casualty to the respectiveinsurer of such real property as part of an insurance settlement; (j) Dispositions by the Borrower and its Restricted Subsidiaries of property not otherwisepermitted under this Section 7.05 (but in any event excluding Receivables Program Assets); provided that withrespect to any Disposition with a purchase price in an aggregate amount (with respect to any single Disposition orseries of related Dispositions) in excess of the greater of (i) $17,500,00035,000,000 and (ii) 7.00% of ConsolidatedEBITDA based on the Most Recent Financial Statements, (i) at the time of such Disposition and after giving effectthereto, no Event of Default shall exist or would result from such Disposition as of the date of the agreementgoverning such Disposition, (ii) the consideration received for such property shall be in an amount at least equal tothe fair market value thereof and (iii) no less than 75% of such consideration shall be paid in cash; provided,however, that for the purposes of clause (iii), the following shall be deemed to be cash: (A) any liabilities (as shownon the Borrower’s or the applicable Restricted Subsidiary’s most recent balance sheet provided hereunder or in thefootnotes thereto, or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilitiesthat would have been reflected on the Borrower’s or such Restricted Subsidiary’s balance sheet if such incurrencehad taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower, of theBorrower or such Restricted Subsidiary) (other than liabilities that are by their terms subordinated to theObligations) that are assumed by the transferee with respect to the applicable Disposition and for which theBorrower and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors inwriting, (B) any securities received by the Borrower or the applicable Restricted Subsidiary from such transfereethat are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of thecash or Cash Equivalents received) within 180 days (or such longer period as the Administrative Agent may agree)following the closing of the applicable Disposition and (C) any Designated Non-Cash Consideration received anyin respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received during the term of this Agreement pursuant to this clause (C), not in excess of thegreater of (i) $25,000,00050,000,000 and (ii) 10% of Consolidated EBITDA based on the Most Recent FinancialStatements; (k) Dispositions by the Borrower and its Restricted Subsidiaries of property acquired after theClosing Date in Permitted Acquisitions; provided that (i) the Borrower identifies any such assets to be divested inreasonable detail in writing to the Administrative Agent within 180 days (or such longer period as theAdministrative Agent may agree) following 147
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the closing of such Permitted Acquisition and (ii) the fair market value of the assets to be divested in connectionwith any Permitted Acquisition does not exceed an amount equal to 35% of the total cash and non-cashconsideration for such Permitted Acquisition; (l) Dispositions of Receivables Program Assets in connection with a Qualified ReceivablesTransaction; provided that (i) the consideration received for such assets shall be in an amount at least equal to thefair market value thereof, (ii) the outstanding principal amount of Indebtedness in respect of Receivables ProgramObligations shall not exceed the maximum amount permitted to be outstanding under Section 7.03(j), and (iii) noEvent of Default shall have occurred and be continuing at the time such Disposition is made; (m) leases, licenses, subleases or sublicenses granted to others in the ordinary course of businessor the termination thereof which (i) do not interfere in any material respect with the business of the Borrower orany Restricted Subsidiary or (ii) relate to closed branches or manufacturing facilities or the discontinuation of anyproduct or service line; (n) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, anUnrestricted Subsidiary (or a Restricted Subsidiary which owns an Unrestricted Subsidiary so long as suchRestricted Subsidiary owns no assets other than the Equity Interests of such Unrestricted Subsidiary); (o) Dispositions of Investments in joint ventures or any Subsidiary that is not a wholly-ownedSubsidiary to the extent required by, or made pursuant to, buy/sell arrangements between the joint venture orsimilar parties set forth in joint venture arrangements and similar binding arrangements; (p) (i) termination of leases in the ordinary course of business, (ii) the expiration of any optionagreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or thesettlement, release or surrender of contractual rights or other litigation claims (including in tort) in the ordinarycourse of business; (q) any merger, consolidation, Disposition or conveyance the sole purpose of which is toreincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the United States. or (ii) anyForeign Subsidiary in the United States or any other jurisdiction; (r) Dispositions of assets in connection with the closing or sale of an office in the ordinarycourse of business of the Borrower and its Restricted Subsidiaries, which consist of leasehold interests in thepremises of such office, the equipment and fixtures located at such premises and the books and records relatingexclusively and directly to the operations of such office; provided that as to each and all such sales and closings, (i)on the date on which the agreement governing such Disposition is executed, no Event of Default shall result and(ii) such sale shall be on commercially reasonable prices and terms in a bona fide arm’s-length transaction; (s) the Disposition of aircrafts, motor vehicles, trailers, cabs, and information technologyequipment; (t) sale and leaseback transactions permitted pursuant to Section 7.15; (u) exchanges or swaps, including transactions covered by Section 1031 of the Code (or anycomparable provision of any foreign jurisdiction), of property or assets so long as the exchange or swap is made forfair value (as reasonably determined by the Borrower) for like property or assets; provided that within 90 days ofany such exchange or swap, in the case of any Loan Party and to the extent such property does not constitute an"Excluded Asset", the 148
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Administrative Agent has a perfected Lien having the same priority as any Lien held on the assets so exchanged orswapped; (v) the Disposition of Equity Interests of a Restricted Subsidiary pursuant to an agreement orother obligation with or to a Person (other than the Borrower or a Restricted Subsidiary) from whom suchRestricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and assets(having been newly formed in connection with such acquisition), made as part of such acquisition and in each casecomprising all or a portion of the consideration in respect of such acquisition; and (w) terminations of Swap Contracts. Section 7.06Restricted Payments . Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower, the Guarantorsand any other Person (including any other Restricted Subsidiary) that owns an Equity Interest in such RestrictedSubsidiary ratably according to their respective holdings of the relevant class of Equity Interest in respect of whichsuch Restricted Payment is being made; (b) the Borrower and each Restricted Subsidiary may declare and make dividend payments orother distributions payable solely in Qualified Equity Interests of such Person, in the case of a RestrictedSubsidiary, ratably to each Person that owns an Equity Interest in such Restricted Subsidiary of the class of EquityInterest in respect of which the Restricted Payment is being made; (c) the Borrower and each Restricted Subsidiary may purchase, redeem or otherwise acquire orretire Equity Interests issued by it with the proceeds (whether in cash or Equity Interests) received from thesubstantially concurrent issue of new Qualified Equity Interests issued by it or Equity Interests of any ParentCompany; (d) the Borrower and each Restricted Subsidiary may make Restricted Payments pursuant to andin accordance with their (or any Parent Company’s) stock option, stock purchase and other benefit plans of generalapplication to management, directors, employees or other individual services providers of the Borrower (or anyParent Company) and its Restricted Subsidiaries, as adopted or implemented in the ordinary course of business; (e) the Borrower may (i) declare and make dividends or distributions to its shareholders,partners or members in respect of Qualified Equity Interests and (ii) purchase, redeem, retire or otherwise acquirefor value Qualified Equity Interests issued by it in an aggregate amount with respect to clauses (i) and (ii)collectively during the term of this Agreement not to exceed the sum of (1) so long as no Event of Default underSections 8.01(a), 8.01(f) or 8.01(g) shall have occurred and be continuing at the time of any action described in thisclause (e)(1) or would result therefrom, the greater of $50,000,000200,000,000 and 2040% of ConsolidatedEBITDA based on the Most Recent Financial Statements, plus (2) an amount not to exceed the Available Amount atthe time of the making of such dividend, distribution, retirement, purchase, redemption or acquisition; providedthat, (x) the portion of the Available Amount attributed to clause (a)(1) of the definition thereof shall not beavailable for any such Restricted Payment made pursuant to this clause (e)(2) if an Event of Default under Sections8.01(a), 8.01(f) or 8.01(g) shall have occurred and be continuing at the time of any action 149
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described in this clause (e) or would result therefrom and (y) the portion of the Available Amount attributed toclause (a)(2) of the definition thereof shall not be available for any such Restricted Payment made pursuant to thisclause (e)(2) if (i) the pro forma Total Net Leverage Ratio would be greater than 4.75:1.00, or (ii) an Event ofDefault under Sections 8.01(a), 8.01(f) or 8.01(g) shall have occurred and be continuing at the time of any actiondescribed in this clause (e) or would result therefrom; (f) so long as no Event of Default under Sections 8.01(a), 8.01(f) or 8.01(g) shall have occurredand be continuing at the time of any action described in this clause (f) or would result therefrom, the Borrower maydeclare and make cash dividends or distributions to its shareholders, partners or members in respect of DisqualifiedEquity Interests; (g) Investments pursuant to Section 7.02(c) shall be permitted; (h) non-cash repurchases of Equity Interests of the Borrower deemed to occur (i) upon the non-cash exercise of stock options and warrants or similar equity incentive awards, and (ii) in connection with thewithholding of a portion of the Equity Interests granted or awarded to a director or an employee to pay for the taxespayable by such director or employee upon such grant or award shall be permitted; (i) the Borrower or any of its Restricted Subsidiaries may (i) pay cash in lieu of fractionalshares in connection with any dividend, distribution, split or combination thereof or any Permitted Acquisition and(ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu offractional shares in connection with any such conversion; (j) the payment of dividends and distributions within ninety (90) days after the date ofdeclaration thereof, if at the date of declaration of such payment, such payment would have complied with the otherprovisions of this Section 7.06 shall be permitted; (k) the purchase, redemption, acquisition, cancellation or other retirement for a nominal valueper right of any rights granted to all holders of Equity Interests of the Borrower or any Parent Company pursuant toany shareholders’ or members’ rights plan adopted for the purpose of protecting shareholders from unfair takeovertactics shall be permitted; provided that any such purchase, redemption, acquisition, cancellation or other retirementof such rights is not for the purpose of evading the limitations of this covenant (all as determined in good faith by aResponsible Officer that is a senior financial officer of the Borrower); (l) [reserved]; (m) the payment of dividends or distributions on, or share repurchases of, the Borrower’sCommon Stock in any fiscal year not to exceed an amount equal to 3.00six percent (6.00%) of the Borrower’sMarket Capitalization; (n) unlimited Restricted Payments shall be permitted so long as (i) no Event of Default shallexist before or after giving effect to such Restricted Payment and (ii) the pro forma Total Net Leverage Ratio wouldbe less than 3.50:1.00; (o) the Borrower and each Restricted Subsidiary may make Tax and Related Distributions; (p) the Borrower may repurchase (or make Restricted Payments to any Parent Company toenable it to repurchase) its Equity Interests upon the exercise of options or warrants or other securities convertibleinto or exchangeable for Equity Interests if such Equity Interests 150
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represent all or a portion of the exercise price of such options or warrants or other securities as part of a “cashless”exercise; (q) the Borrower may make Restricted Payments to the extent necessary to permit any ParentCompany to pay (i) general administrative fees, costs and expenses (including corporate overhead, corporatemaintenance, insurance premiums, audit and other accounting and reporting fees, costs and expenses, SEC fees,costs and expenses, legal or similar fees, costs and expenses and customary wages, salary, bonus and other benefitspayable to directors, officers, employees, members of management, consultants and/or independent contractors ofany Parent Company, fees, costs and expenses in connection with debt or equity offerings (whether or notconsummated), and fees, costs and expenses in connection with Investments (whether or not consummated), in thecase of such Investments or debt or equity offerings, so long as and to the extent that such Investments or theproceeds of such debt or equity offerings are contributed or were intended to be contributed (if such Investment,debt or equity offerings were not consummated) to the Borrower or its Restricted Subsidiaries), in each case, whichare reasonable and customary and incurred in the ordinary course of business by such Parent Company, and (ii) anyreasonable and customary indemnification claims made by current or former directors, officers, members ofmanagement, employees or consultants of any Parent Company, in the case of each of clauses (i) and (ii), solely tothe extent (1) attributable to the ownership by such Parent Company of the Borrower and/or its Subsidiaries or tothe payment by such Parent Company of any of such expenses on behalf of the Borrower and its Subsidiaries and(2) that the Borrower and its Restricted Subsidiaries have not otherwise made payments to such Parent Company orany of its Affiliates in respect of such fees, costs and expenses; provided that Restricted Payments under this clause(q) that are attributable to any Unrestricted Subsidiary shall be permitted only to the extent that either (x) suchUnrestricted Subsidiary has made one or more cash distributions, advances or loans to the Borrower or any of itsRestricted Subsidiaries for such purpose in an amount up to the amount of such Unrestricted Subsidiary’sproportionate share of such fees, costs and expenses or (y) the amount of such Restricted Payments made by theBorrower on behalf of such Unrestricted Subsidiary is treated as an Investment subject to Section 7.02 hereof; (r) the Borrower may make Restricted Payments to any Parent Company to enable such ParentCompany to make Restricted Payments consisting of (1) cash payments in lieu of the issuance of fractional sharesin connection with the exercise of warrants, options or other securities convertible into or exchangeable for EquityInterests of such Parent Company or (2) (A) payments made or expected to be made in respect of withholding orsimilar Taxes payable by any future, present or former officers, directors, employees, members of management,managers or consultants of the Borrower, any Subsidiary or Parent Company or any of their respective ImmediateFamily Members in respect of their purchase of Equity Interests of such Parent Company and/or (B) repurchases ofEquity Interests in consideration of the payments described in clause (A), including demand repurchases inconnection with the exercise of stock options; provided that, for purposes of this clause (r), Restricted Paymentsshall only be made to a Parent Company that owns no Equity Interests in any other Person other than the Borrowerand its Subsidiaries; (s) the Borrower may make Restricted Payments the proceeds of which are applied (A) on orprior to the date that is 60 days after the Closing Date, solely to effect the consummation of the Transactions and(B) on or prior to the date that is 60 days after the Closing Date, to satisfy any payment obligations owing inconnection with the Transactions (including, without limitation, (i) cash payments to holders of Equity Interestsunder any management equity plan, stock option plan or any other management or employee benefit plan oragreement of Old BRBR and (ii) Restricted Payments to holders of Equity Interests of Old BRBR (immediatelyprior to giving effect to the Transactions)) pursuant to the Transaction Agreement (as in effect on the Closing Date)and the Transaction Merger Consideration; and 151
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(t) to the extent constituting Restricted Payments, the Borrower or any Restricted Subsidiarymay make payments (other than any Tax and Related Distributions) pursuant to the Formation Documents (as ineffect on the date of this Agreement, or as amended, modified or restated from time to time in a manner notmaterially adverse to the interests of the Lenders), including, without limitation, all indemnity paymentsthereunder, all fees, costs and expenses thereunder, and all other payments and reimbursements owed thereunder, ineach case whether currently due or paid in respect of accruals from prior periods, and with respect to any of theforegoing, may pay such amounts to or on behalf of any Parent Company, provided, however, that RestrictedPayments made pursuant to Article IV of the Tax Receivable Agreement and made in reliance on this clause (t)shall not exceed $1,500,000 in the aggregate. Section 7.07Change in Nature of Business . Engage in any material line of business substantially different from the Permitted Business. Section 7.08Transactions with Affiliates . Enter into any transaction of any kind involving, pursuant to any such transaction, payments in excess of the greater of (i) $12,500,00025,000,000 and (ii) 5.00% of Consolidated EBITDA based on the Most Recent Financial Statements in any Fiscal Year based on the Most Recent Financial Statements with any Affiliate of the Borrower, whether or not in the ordinary course of business, other than on fair and reasonable terms not materially less favorable to the Borrower or such Restricted Subsidiary than would be obtainable by the Borrower or such Restricted Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate (or, if in the good faith judgment of the Borrower, no comparable transaction is available with which to compare such transaction, such transaction is otherwise fair to the Borrower or such Restricted Subsidiary from a financial point of view and when such transaction is taken in its entirety), provided that the foregoing restriction shall not apply to: (a) transactions between or among Loan Parties or between and among Restricted Subsidiariesthat are not Loan Parties; (b) Qualified Receivables Transactions otherwise permitted hereunder; (c) the payment of reasonable fees, expenses, indemnities, and compensation (including equitycompensation) to and insurance provided on behalf of current, former and future officers, employees, managers,and directors of the Borrower or any of its Restricted Subsidiaries and indemnification agreements entered into bythe Borrower or any of its Restricted Subsidiaries; (d) employment and severance arrangements with current, former and future officers andemployees and transactions pursuant to stock option plans and employee benefit plans and arrangements in theordinary course of business; (e) transactions pursuant to agreements in existence on the Closing Date and set forth onSchedule 7.08 or any amendment thereto to the extent such an amendment is not adverse to the Lenders in anymaterial respect; (f) Restricted Payments made pursuant to Section 7.06; 152
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(g) transactions between or among Loan Parties and Restricted Subsidiaries who are not LoanParties provided any such transaction does not adversely impact the Collateral securing the Obligations or theguarantees of the Obligations, impair the rights of or benefits or remedies available to the Secured Parties underany Loan Document or result in (and are not reasonably expected to result in) a Material Adverse Effect; providedthat, during the continuance of an Event of Default, any amounts payable by a Loan Party to a RestrictedSubsidiary that is not a Loan Party in connection with any such transactions shall be subordinated to the payment ofthe Obligations; (h) the pledge of Equity Interests of Unrestricted Subsidiaries; (i) any issuance, sale or grant of securities or other payments, awards or grants in cash,securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stockownership plans approved by the board of directors (or equivalent governing body) of the Borrower or anyRestricted Subsidiary; (j) (i) any collective bargaining agreements, employment agreements or arrangements,severance agreements or compensatory (including profit sharing) arrangements entered into by the Borrower or anyof its Restricted Subsidiaries with their respective current or former officers, directors, members of management,managers, employees, consultants or independent contractors or those of any Parent Company, (ii) any subscriptionagreement or similar agreement pertaining to the repurchase of Equity Interests pursuant to put/call rights or similarrights with current or former officers, directors, members of management, managers, employees, consultants orindependent contractors and (iii) transactions pursuant to any employee compensation arrangement, benefit plan,stock option plan or arrangement, or any health, disability or similar insurance plan which covers current or formerofficers, directors, members of management, employees, consultants or independent contractors; (k) the Transactions, including the payment of any fees, costs, expenses, indemnity or similarobligations with respect thereto; (l) Guarantees permitted by this Agreement; (m) non-exclusive Licenses or sublicenses of IP Rights in the ordinary course of business withPost or any of its Subsidiaries or any of the Borrower’s Subsidiaries; and (n) transactions pursuant to the Formation Documents (as in effect on the date of thisAgreement, or as amended, modified or restated from time to time in a manner not materially adverse to theinterests of the Lenders); provided, however, that the payments made pursuant to Article IV of the Tax ReceivablesAgreement and made in reliance on this clause (n) shall not exceed $1,500,000 in the aggregate. Section 7.09Restrictive Agreements . Enter into any Contractual Obligation (other than this Agreement or any other Loan Document) that limits the ability (i) of any Restricted Subsidiary to make Restricted Payments to the Borrower or any Guarantor or to otherwise transfer property to the Borrower or any Guarantor, (ii) of any Restricted Subsidiary to Guarantee the Indebtedness of the Borrower hereunder or (iii) of the Borrower or any Restricted Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person to secure the Obligations; provided, however, that clauses (i) and (iii) shall not prohibit any negative pledge or similar provision, or restriction on transfer of property, incurred or provided in favor of any holder of Indebtedness permitted under 153
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Section 7.03(e) and Section 7.15 solely to the extent any such negative pledge relates to the property financed by or the subject of such Indebtedness or transaction or any other property securing any other Indebtedness permitted under Section 7.03(e) or Section 7.15 to the extent permitted thereunder. Notwithstanding the foregoing, this Section 7.09 will not restrict or prohibit: (a) to the extent constituting a limitation described in Section 7.09(i) above, restrictions imposedpursuant to an agreement that has been entered into in connection with a transaction permitted pursuant to Section7.05 with respect to the property that is subject to that transaction; (b) restrictions imposed by any agreement relating to secured Indebtedness permitted pursuant toSection 7.03(b), (d) (to the extent secured under Section 7.01(x)), (e), (g), (i), (j), (k), or (t), in each case in respectof the limitation described in Section 7.09(iii) to the extent that such restrictions apply only to the property or assetssecuring such Indebtedness; (c) provisions restricting subletting or assignment of Contractual Obligations; (d) to the extent constituting a limitation described in Section 7.09(i) above, restrictionscontained in Indebtedness permitted under (x) Section 7.03(g) or (y) Sections 7.03(i), (s) or (t), in the case of thisclause (y) so long as such restrictions are no more restrictive, taken as a whole, to the Borrower and its RestrictedSubsidiaries than the restrictions or covenants contained in this Agreement; (e) to the extent constituting a limitation described in Section 7.09(i) or 7.09(ii) above,provisions with respect to the disposition or distribution of assets or property in joint venture agreements and othersimilar agreements entered into by the Borrower and its Restricted Subsidiaries in the ordinary course of business; (f) to the extent constituting the limitation described in Section 7.09(i) or 7.09(ii) above,customary restrictions on a Receivables Subsidiary and Receivables Program Assets effected in connection with aQualified Receivables Transaction; (g) to the extent constituting a limitation described in Section 7.09(i) above, restrictions on cashor other deposits or net worth imposed by customers on the Borrower and its Restricted Subsidiaries undercontracts entered into in the ordinary course of business; (h) to the extent constituting a limitation described in Section 7.09(i) above, encumbrances orrestrictions arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not,individually or in the aggregate, detract from the value of property or assets of the Borrower or any of its RestrictedSubsidiaries in any manner material to the Borrower or any of its Restricted Subsidiaries; (i) (x) to the extent constituting a limitation described in Section 7.09(i) above, encumbrancesor restrictions existing under, by reason of or with respect to customary provisions contained in leases, licenses ofintellectual property and other agreements, in each case, entered into by the Borrower or any of its RestrictedSubsidiaries in the ordinary course of business and (y) to the extent constituting a limitation described in Section7.09(iii) above, encumbrances or restrictions existing under, by reason of or with respect to customary provisionscontained in licenses of intellectual property or leases which prohibit the granting of a Lien on such intellectualproperty licensed to the Borrower or any of its Restricted Subsidiaries pursuant to the lease or license agreement, ineach case, (i) entered into by the Borrower or any of its 154
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Restricted Subsidiaries with parties that are not the Borrower or any of its Restricted Subsidiaries and (ii) enteredinto in the ordinary course of business; or (j) (x) restrictions set forth in any of the Senior Notes, in each case as in effect on the ClosingDate or as amended, modified, refinanced, replaced, renewed or extended in a manner that is not more restrictive,taken as a whole, than any of the Senior Notes as in effect on the Closing Date and (y) similar restrictions set forthin any similar Indebtedness permitted to be incurred hereunder after the Closing Date, provided that suchrestrictions are no more restrictive, taken as a whole, than those set forth in any of the Senior Notes as in effect onthe Closing Date. Section 7.10Use of Proceeds . Request any Credit Extension, use, or allow any of its Restricted Subsidiaries to use, the proceeds of any Credit Extension, (a) in furtherance of an offer, payment, promise to pay or authorization of the payment or giving of money, or anything else of value to any Person in violation of Anti-Corruption Laws, (b) for the purpose of funding, financing or facilitating any activities, business or transaction of, or with, any Sanctioned Person or in any Sanctioned Country, or in any other manner that will result in any violation in any material respect by any Loan Party or any Lender or Arranger, the Administrative Agent or any L/C Issuer of any Anti-Terrorism Laws or Sanctions or (c) to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose. Section 7.11 Total Net Leverage Ratio . Commencing with the fiscal quarter ending June 30, 2022, permit the Total Net Leverage Ratio at the end of any fiscal quarter to be greater than 6.00:1.00. Section 7.12Amendments of Organization Documents . Amend any of its Organization Documents in a manner materially adverse to the Lenders. Section 7.13Fiscal Year . Make any change in its Fiscal Year. Section 7.14Prepayments of Indebtedness . Prepay, redeem, purchase, defease or otherwise satisfy more than ninety (90) days prior to the scheduled maturity thereof in any manner, or make any payment in violation of any subordination terms of, any subordinated, unsecured or junior secured Indebtedness in an aggregate principal amount during the term of this Agreement in excess of the greater of (x) $37,500,00075,000,000 and (y) 15.00% of Consolidated EBITDA based on the Most Recent Financial Statements (such Indebtedness, the “Restricted Indebtedness”), except, in each case, for: 155
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(a) the refinancing thereof with the proceeds of any Permitted Refinancing permitted by Section7.03, (b) the prepayment of Indebtedness of the Borrower or any Restricted Subsidiary owed to theBorrower or any Restricted Subsidiary to the extent not prohibited by the subordination provisions applicablethereto, (c) so long as no Event of Default under Sections 8.01(a), 8.01(f) or 8.01(g) has occurred and iscontinuing or would be caused thereby, duringfrom and after the term of this AgreementFirst AmendmentEffect Date, prepayments, redemptions, purchases or other payments made to satisfy Restricted Indebtedness (notin violation of any subordination terms in respect thereof) in an amount not to exceed the greater of$75,000,000150,000,000 and 30% of Consolidated EBITDA based on the Most Recent Financial Statements, (d) an amount not to exceed the Available Amount at the time of the making of suchprepayment, redemption, repurchase or other payment; provided that the portion of the Available Amount attributedto clause (a)(2) of the definition thereof shall not be available for any such prepayments, redemptions, purchases orother payments made to satisfy Restricted Indebtedness made pursuant to this clause (d) if an Event of Defaultunder Sections 8.01(a), 8.01(f) or 8.01(g) has occurred and is continuing or would be caused thereby, (e) so long as no Event of Default under Sections 8.01(a), 8.01(f) or 8.01(g) has occurred and iscontinuing or would be caused thereby, prepayments, redemptions, purchases or other payments made to satisfyRestricted Indebtedness (not in violation of any subordination terms in respect thereof) shall be permitted so longas the pro forma Total Net Leverage Ratio would be less than 3.50:1.00, and (f) regularly scheduled interest, fees and indemnification obligations due under any document,agreement or instrument evidencing any Restricted Indebtedness or entered into in connection with any RestrictedIndebtedness, other non-principal payments thereunder, any mandatory prepayments of principal, interest and feesthereunder, scheduled payments thereon necessary to avoid the Restricted Indebtedness from constituting“applicable high yield discount obligations” within the meaning of Section 163(i)(1) of the Code and principal onthe scheduled maturity date of any Restricted Indebtedness (or within ninety (90) days thereof), in each case to theextent not expressly prohibited by the subordination provisions applicable thereto, if any, and (g) so long as no Event of Default under Section 8.01(a), 8.01(f) or 8.01(g) has occurred andis continuing or would be caused thereby, prepayments, redemptions, purchases or other payments made tosatisfy, in whole or in part, the Senior Notes. (h) Section 7.15Sale-Leaseback Transactions . Enter into any sale-leaseback transaction in which any Loan Party is the seller or the lessee unless the disposition of assets is permitted under Section 7.05 and the incurrence of indebtedness is permitted by Section 7.03; provided, that the aggregate amount of all such sales during the term of this Agreement shall not exceed the greater of (x) $100,000,000200,000,000 and (y) 40% of Consolidated EBITDA based on the Most Recent Financial Statements. Section 7.16Amendments of Indebtedness 156
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. Amend, modify, or change in any manner any term or condition of any Restricted Indebtedness in excess of the Threshold Amount, in each case, in a manner materially adverse to the Lenders or that would effect a prepayment, redemption or repurchase or a Restricted Payment not otherwise permitted under Section 7.06 or Section 7.14, as applicable. Article 8.EVENTS OF DEFAULT AND REMEDIES Section 8.01Events of Default . Each of the following shall constitute an Event of Default (each, an “Event of Default”): (a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when and as required tobe paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii) within three Business Days afterthe same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) withinfive Business Days after the same becomes due, any other amount payable hereunder or under any other LoanDocument; or (b) Specific Covenants. (i) The Borrower fails to perform or observe any term, covenant oragreement contained in any of Sections 6.03(a), 6.04 (with respect to the Borrower’s existence) or 6.10, or Article 7(other than Section 7.11) or (ii) the Borrower fails to perform or observe the covenant contained in Section 7.11;provided that a breach of the requirements of Section 7.11 shall not constitute an Event of Default for purposes ofany Facility other than the Revolving Credit Facility unless such Facility is given the benefit of such covenant inthe applicable Joinder Agreement or unless and until the Required Revolving Credit Lenders have terminated theRevolving Credit Commitments and/or demanded repayment of, or otherwise accelerated, the Indebtedness owedto them hereunder; or (c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement(not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed orobserved and such failure continues for 30 days after the Administrative Agent provides written notice to theBorrower of such failure; or (d) Representations and Warranties. Any representation, warranty, certification or statement offact made or deemed made by or on behalf of the Borrower or any other Loan Party herein, in any other LoanDocument, or in any document delivered in connection herewith or therewith shall be incorrect, in any materialrespect, when made or deemed made; or (e) Cross-Default. (i) The Borrower or any Restricted Subsidiary (other than an EscrowSubsidiary) (A) fails to make any payment when due (whether by scheduled maturity, required prepayment,acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee of Indebtedness (other thanIndebtedness under the Loan Documents and Indebtedness under Swap Contracts) having an aggregate principalamount (including undrawn committed or available amounts and including amounts owing to all creditors underany combined or syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe orperform any other agreement or condition relating to any such Indebtedness or Guarantee of Indebtedness orcontained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, ineach case after any applicable grace, cure or notice period, the effect of which default or other event is to cause, orto permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee ofIndebtedness (or a trustee 157
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or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice ifrequired, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed(automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made,prior to its stated maturity, or such Guarantee of Indebtedness to become payable or cash collateral in respectthereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined, or assuch comparable term may be used and defined, in such Swap Contract) resulting from (A) any event of defaultunder such Swap Contract as to which the Borrower or any Restricted Subsidiary is the Defaulting Party (asdefined, or as such comparable term may be used and defined, in such Swap Contract) or (B) any TerminationEvent (as defined, or as such comparable term may be used and defined, in such Swap Contract) under such SwapContract as to which the Borrower or any Restricted Subsidiary is an Affected Party (as defined, or as suchcomparable term may be used and defined, in such Swap Contract) and, in either event, the Swap TerminationValue owed by the Borrower or such Restricted Subsidiary as a result thereof is greater than the Threshold Amount;or (f) Insolvency Proceedings, Etc. Any Loan Party or any of its Restricted Subsidiaries (other thanan Immaterial Subsidiary or an Escrow Subsidiary) institutes or consents to the institution of any proceeding underany Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to theappointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or forall or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator orsimilar officer is appointed without the application or consent of such Person and the appointment continuesundischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to anysuch Person or to all or any material part of its property is instituted without the consent of such Person andcontinues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or (g) Inability to Pay Debts; Attachment. (i) The Borrower or any Restricted Subsidiary (otherthan an Immaterial Subsidiary or an Escrow Subsidiary) becomes unable or admits in writing its inability or failsgenerally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similarprocess is issued or levied against all or any material part of the property of any such Person and is not released,vacated or fully bonded within 30 days after its issue or levy; or (h) Judgments. There is entered against the Borrower or any Restricted Subsidiary (other than anEscrow Subsidiary) (i) one or more final judgments or orders for the payment of money in an aggregate amount (asto all such judgments or orders) exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage), or (ii) any one or more non-monetary finaljudgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material AdverseEffect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment ororder, or (B) there is a period of 30 consecutive days during which a stay of enforcement of such judgment, byreason of a pending appeal or otherwise, is not in effect; or (i) ERISA. (i) An ERISA Event occurs that alone or together with any other ERISA Event thathas occurred could reasonably be expected to result in a Material Adverse Effect, or (ii) the Borrower or anyERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment paymentwith respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregateamount that could reasonably be expected to result in a Material Adverse Effect; or (j) Invalidity of Loan Documents. Any provision of any Loan Document, at any time after itsexecution and delivery and for any reason other than as expressly permitted 158
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hereunder or thereunder including the release or termination thereof by the Administrative Agent or the RequiredLenders or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party or anyother Person contests in any manner the validity or enforceability of any provision of any Loan Document; or anyLoan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke,terminate or rescind any provision of any Loan Document; or (k) Change of Control. There occurs any Change of Control; or (l) Collateral Documents. Any Collateral Document after delivery thereof pursuant to Article 4or Section 6.11 shall for any reason (other than pursuant to the terms hereof) cease to create a valid and perfectedfirst priority Lien (subject to Permitted Prior Liens) on the Collateral purported to be covered thereby. Section 8.02Remedies Upon Event of Default . If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders (or, in the case of Section 8.02(a) (insofar as it relates to the obligations of the Revolving Credit Lenders to make Revolving Credit Loans and of the L/C Issuers to make L/C Credit Extensions) or Section 8.02(e), in each case, the Required Revolving Credit Lenders), take any or all of the following actions: (a) declare the commitment of each Lender to make Loans and any obligation of the L/C Issuersto make L/C Credit Extensions to be terminated, whereupon such commitments and obligationobligations shall beterminated; (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaidthereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediatelydue and payable, without presentment, demand, protest or other notice of any kind, all of which are herebyexpressly waived by the Borrower; (c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to105% of the then Outstanding Amount thereof); (d) exercise on behalf of itself, the Lenders and the L/C Issuers all rights and remedies availableto it, the Lenders and the L/C Issuers under the Loan Documents or at law or in equity; and (e) upon the occurrence of an Event of Default under Section 7.11 that is unwaived, (x)terminate the Revolving Credit Commitments and/or (y) take any or all of the actions specified in Section 8.02(a),(b), (c) or (d) in respect of the Revolving Credit Commitments, Revolving Credit Loans and Letters of Credit; provided, however, that (i) upon the taking of any action by or upon the direction of the Required Revolving Credit Lenders as contemplated by clause (e) above, the Required Lenders may take any of the actions contemplated by clause (a) though (d) above with respect to any Facility hereunder and (ii) upon the occurrence of any Event of Default set forth in Section 8.01(f), the obligation of each Lender to make Loans and any obligation of each L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as 159
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aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender. Section 8.03Application of Funds . After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02), any amounts received on account of the Obligations shall, subject to the provisions of Sections 2.15 and 2.16 and of any Pari Passu Intercreditor Agreement then in effect, be applied by the Administrative Agent in the order specified in Section 6.5 of the Collateral Agreement. Article 9.AGENCY Section 9.01Appointment and Authority . (a) Each of the Lenders and each L/C Issuer hereby irrevocably appoints JPMorgan Chase Bank,N.A. to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizesthe Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to theAdministrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonablyincidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lendersand the L/C Issuers, and the Borrower shall not have rights as a third-party beneficiary of any of such provisions. Itis understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any othersimilar term) with reference to any Agent is not intended to connote any fiduciary or other implied (or express)obligations arising under agency doctrine of any applicable Law. Instead, such term is used as a matter of marketcustom, and is intended to create or reflect only an administrative relationship between independent contractingparties. (b) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents,and each of the Lenders (including in its capacities as a potential Cash Management Bank and potential HedgeBank) and the L/C Issuers hereby irrevocably appoints and authorizes the Administrative Agent to act as the agentof such Lender and such L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens onCollateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers anddiscretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent”,and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the CollateralDocuments, or for exercising any rights and remedies thereunder (at the direction of the Administrative Agent),shall be entitled to the benefits of all provisions of this Article 9 and Article 10 (including Section 10.04(c)), asthough such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents, asif set forth in full herein with respect thereto. The provisions of this Article 9 shall survive the payment in full ofthe Obligations, the termination of the Commitments and the termination of this Agreement. Section 9.02Rights as a Lender 160
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. Each Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent hereunder, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as such Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not an Agent hereunder and without any duty to account therefor to the Lenders. Section 9.03Exculpatory Provisions . No Agent shall have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and any such duties hereunder and thereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Agents: (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Defaulthas occurred and is continuing; (b) shall not have any duty to take any discretionary action or exercise any discretionary powers,except (in the case of the Administrative Agent) discretionary rights and powers expressly contemplated hereby orby the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by theRequired Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein orin the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that,in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability that is contrary to anyLoan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of theautomatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of propertyof a Defaulting Lender in violation of any Debtor Relief Law; and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have anyduty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or anyof its Affiliates that is communicated to or obtained by the Person serving as such Agent or any of its Affiliates inany capacity. The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 8.02 and 10.01) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until it shall have received written notice from a Lender, an L/C Issuer or the Borrower referring to this Agreement, describing such Default and stating that such notice is a “notice of default.” No Agent or any of its Related Parties shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) 161
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the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral or (vi) the satisfaction of any condition set forth in Article 4 or elsewhere herein, other than, in the case of the Administrative Agent, to confirm receipt of items expressly required to be delivered to the Administrative Agent. Section 9.04Reliance . Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or such L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or such L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Section 9.05Delegation of Duties . The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub- agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub agents. Section 9.06Resignation of Administrative Agent . The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuers and the Borrower. Upon receipt of any such notice of resignation, the Required 162
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Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a financial institution with an office in the United States, or an Affiliate of any such financial institution with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the L/C Issuers appoint a successor Administrative Agent meeting the qualifications set forth above; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuers under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (b) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and L/C Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent. Any resignation by the entity serving as Administrative Agent pursuant to this Section shall also constitute its resignation as an L/C Issuer (if applicable). Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor may agree to succeed to and become vested with all of the rights, powers, privileges and duties of a retiring L/C Issuer, if applicable. In connection with any such agreement to succeed to the retiring L/C Issuer, the successor L/C Issuer, if applicable, shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements reasonably satisfactory to the retiring L/C Issuer to effectively assume the obligations of such retiring L/C Issuer with respect to such Letters of Credit. Notwithstanding the foregoing, the failure of any successor to agree to succeed to a retiring L/C Issuer shall not affect the resignation of such retiring L/C Issuer. The retiring L/C Issuer shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect to all Letters of Credit issued by it and outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to 163
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require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)), but shall have no obligation to issue any additional Letters of Credit or to amend, extend or otherwise modify any existing Letters of Credit (except as required pursuant to the terms of any such existing Letters of Credit). Section 9.07Non-Reliance on Administrative Agent and Other Lenders . Each Lender and each L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent or any Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Section 9.08No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Arrangers, Co-Managers or the Agents shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or an L/C Issuer hereunder. Section 9.09Administrative Agent May File Proofs of Claim . In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relating to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated), by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of the principal and interest owing and unpaidin respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such otherdocuments as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuers and theAdministrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advancesof the Lenders, the L/C Issuers and the Administrative Agent and their respective agents and counsel and all otheramounts due the Lenders, the L/C Issuers and the Administrative Agent under Sections 2.03(h) and (i), 2.09 and10.04) allowed in such judicial proceeding; and (b) to collect and receive any monies or other property payable or deliverable on any suchclaims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall 164
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consent to the making of such payments directly to the Lenders and the L/C Issuers, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and 10.04. Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or L/C Issuer in any such proceeding. Section 9.10Collateral and Guaranty Matters . Each Lender (including in its capacities as a potential Cash Management Bank and as a potential Hedge Bank) and L/C Issuer irrevocably authorizes the Administrative Agent, at its option and in its discretion, after the Closing Date: (a) to release any Lien to the extent securing the Obligations on any property granted to or heldby the Administrative Agent under any Loan Document (i), upon termination of the Aggregate Commitments andpayment in full of all Obligations (other than (A) contingent indemnification obligations as to which no claim hasbeen asserted and (B) obligations and liabilities under Secured Cash Management Agreements and Secured HedgeAgreements), the termination or expiration with no pending drawings of all Letters of Credit (other than Letters ofCredit which have been Cash Collateralized or as to which other arrangements satisfactory to the AdministrativeAgent and the applicable L/C Issuer shall have been made) and the termination and payment in full of allobligations and liabilities under Secured Cash Management Agreements and Secured Hedge Agreements in respectof which the Administrative Agent has received notice pursuant to Section 9.11 (other than any such agreements asto which other arrangements reasonably satisfactory to the applicable Cash Management Bank or Hedge Bank havebeen made), (ii) that is Disposed of in a transaction permitted hereunder the result of which is that, following theconsummation thereof, no Loan Party has rights in the property being Disposed of or (iii) if approved, authorizedor ratified in writing in accordance with Section 10.01; (b) to release any Guarantor from its Guarantee of the Obligations under the CollateralAgreement (i) upon termination of the Aggregate Commitments and payment in full of all Obligations (other than(A) contingent indemnification obligations as to which no claim has been asserted and (B) obligations andliabilities under Secured Cash Management Agreements and Secured Hedge Agreements), the termination orexpiration with no pending drawings of all Letters of Credit (other than Letters of Credit which have been CashCollateralized or as to which other arrangements satisfactory to the Administrative Agent and the applicable L/CIssuer shall have been made) and the termination and payment in full of all obligations and liabilities under SecuredCash Management Agreements and Secured Hedge Agreements in respect of which the Administrative Agent hasreceived notice pursuant to Section 9.11 (other than any such agreements as to which other arrangementsreasonably satisfactory to the applicable Cash Management Bank or Hedge Bank have been made), or (ii) ifapproved, authorized or ratified in writing in accordance with Section 10.01; (c) to release any Guarantor from its Guarantee of the Obligations and all Liens granted by anysuch Guarantor, and all pledges of Equity Interests in any such Guarantor under the Collateral Agreement if suchPerson ceases to be a Restricted Subsidiary (including by 165
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being designated an Unrestricted Subsidiary in accordance with Section 6.17 hereof, or by way of liquidation,merger, consolidation, amalgamation or dissolution or Disposition thereof as permitted by this Agreement), orbecomes an Immaterial Subsidiary or an Excluded Subsidiary (unless such Person continues to guarantee any of theSenior Notes or any Permitted Refinancing thereof); provided that, if such Guarantor becomes an ExcludedSubsidiary by virtue of being a first tier Affected Foreign Subsidiary, then the release of any pledge of EquityInterests therein shall be limited to 35% of the voting Equity Interests thereof and if such Affected ForeignSubsidiary is a direct or indirect Subsidiary of an Affected Foreign Subsidiary, then the release shall be 100% ofany pledge of Equity Interests of such Subsidiary; provided, however, that if such Guarantor becomes an ExcludedSubsidiary solely in reliance on clause (g) of the definition of “Excluded Subsidiary,” then the release of suchGuarantor from its Obligations under the Loan Documents shall only be permitted if at the time such Guarantorbecomes an Excluded Subsidiary of such type, after giving pro forma effect to such release and consummation ofthe transaction that causes such Person to be an Excluded Subsidiary of such type, the Borrower is deemed to havemade a new Investment in such Person on the date of such release in an amount equal to the portion of the fairmarket value of the net assets of such Person attributable to the Borrower’s or any Restricted Subsidiary’s EquityInterest therein and such Investment is permitted under Section 7.02 at such time; (d) to execute any intercreditor agreements and/or subordination agreements with any holder ofany Indebtedness or Liens permitted by this Agreement to the extent such intercreditor agreement and/orsubordination agreement is required by the terms hereof; and (e) to subordinate any Lien on any property granted to or held by the Administrative Agentunder any Loan Document, to the extent securing the Obligations, to the holder of any Lien on such property that ispermitted by Section 7.01(i). Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of Collateral, or to release any Guarantor from its Guarantee of the Obligations under the Collateral Agreement pursuant to this Section 9.10. In each case as specified in this Section 9.10, the Administrative Agent will, at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Guarantor from its Guarantee of the Obligations under the Collateral Agreement, in each case in accordance with the terms of the Loan Documents and this Section 9.10. Notwithstanding anything to the contrary in this Agreement, upon a Subsidiary being designated an Unrestricted Subsidiary in accordance with Section 6.17 of this Agreement or otherwise ceasing to be a Restricted Subsidiary (including by way of liquidation, merger, consolidation or amalgamation or dissolution) in a transaction permitted by this Agreement, such Subsidiary shall be automatically released and relieved of any obligations under this Agreement, the Collateral Agreement and all other Loan Documents, all Liens granted by such Subsidiary in its assets to the Administrative Agent shall be automatically released, all pledges to the Administrative Agent of Equity Interests in any such Subsidiary shall be automatically released, and the Administrative Agent is authorized to, and shall promptly, deliver to the Borrower any acknowledgement confirming such releases and all necessary releases and terminations, in each case as the Borrower may reasonably request to evidence such release and at the Borrower’s 166
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expense. To the extent any Loan Document conflicts or is inconsistent with the terms of this Section, this Section shall govern and control in all respects. Section 9.11 Additional Secured Parties . No Cash Management Bank or Hedge Bank that obtains the benefits of the Collateral Agreement or any Collateral by virtue of the provisions hereof or of the Collateral Agreement or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article 9 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. Section 9.12Certain ERISA Matters . (a) Each Lender (x) represents and warrants, as of the date such Person became a Lender partyhereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Personceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Co-Managers and theArrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borroweror any other Loan Party, that at least one of the following is and will be true: (i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA orotherwise for purposes of Title I of ERISA or Section 4975 of the Code) of one or moreBenefit Plans in connection with the Loans, the Letters of Credit or the Commitments, (ii) the prohibited transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualifiedprofessional asset managers), PTE 95-60 (a class exemption for certain transactionsinvolving insurance company general accounts), PTE 90-1 (a class exemption for certaintransactions involving insurance company pooled separate accounts), PTE 91-38 (a classexemption for certain transactions involving bank collective investment funds) or PTE 96-23(a class exemption for certain transactions determined by in-house asset managers), isapplicable so as to exempt from the prohibitions of Section 406 of ERISA and Section 4975of the Code such Lender’s entrance into, participation in, administration of and performanceof the Loans, the Letters of Credit, the Commitments and this Agreement, (iii) (A) such Lender is an investment fund managed by a “Qualified Professional AssetManager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified ProfessionalAsset Manager made the 167
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investment decision on behalf of such Lender to enter into, participate in, administer andperform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) theentrance into, participation in, administration of and performance of the Loans, the Letters ofCredit, the Commitments and this Agreement satisfies the requirements of sub-sections (b)through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, therequirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to suchLender’s entrance into, participation in, administration of and performance of the Loans, theLetters of Credit, the Commitments and this Agreement, or (iv) such other representation, warranty and covenant as may be agreed in writingbetween the Administrative Agent, in its sole discretion, and such Lender. (b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is truewith respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordancewith sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as ofthe date such Person became a Lender party hereto, and (y) covenants, from the date such Person became a Lenderparty hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the AdministrativeAgent, the Co-Managers and the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to orfor the benefit of the Borrower or any other Loan Party, that none of the Administrative Agent or any Arranger orany of their respective Affiliates is a fiduciary with respect to the assets of such Lender involved in the Loans, theLetters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise ofany rights by the Administrative Agent under this Agreement, any Loan Document or any documents related tohereto or thereto). Section 9.13Acknowledgements of Lenders and L/C Issuers. (a) Each Lender and each L/C Issuer hereby agrees that (x) if the Administrative Agent notifiessuch Lender or L/C Issuer, as applicable, that the Administrative Agent has determined in its sole discretion thatany funds received by such Lender or L/C Issuer from the Administrative Agent or any of its Affiliates (whether asa payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a“Payment”) were erroneously transmitted to such Lender or L/C Issuer (whether or not known to such Lender orL/C Issuer), and demands the return of such Payment (or a portion thereof), such Lender or L/C Issuer, asapplicable, shall promptly, but in no event later than one Business Day thereafter, return to the AdministrativeAgent the amount of any such Payment (or portion thereof) as to which such a demand was made in same dayfunds, together with interest thereon in respect of each day from and including the date such Payment (or portionthereof) was received by such Lender or L/C Issuer, as applicable, to the date such amount is repaid to theAdministrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent inaccordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extentpermitted by applicable law, such Lender or L/C Issuer, as applicable, shall not assert, and hereby waives, as to theAdministrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to anydemand, claim or counterclaim by the Administrative Agent for the return of any Payments received, includingwithout limitation any defense based on “discharge for value” or any similar doctrine. A notice of theAdministrative Agent to any Lender or L/C Issuer under this Section 9.13(a) shall be conclusive, absent manifesterror. 168
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(b) Each Lender and L/C Issuer, as applicable, hereby further agrees that if it receives a Paymentfrom the Administrative Agent or any of its Affiliates (x) that is in a different amount than, or on a different datefrom, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect tosuch Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall beon notice, in each such case, that an error has been made with respect to such Payment. Each Lender and each L/CIssuer agrees that, in each such case, or if it otherwise becomes aware that a Payment (or portion thereof) may havebeen sent in error, such Lender shall promptly notify the Administrative Agent of such occurrence and, upondemand from the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter,return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demandwas made in same day funds, together with interest thereon in respect of each day from and including the date suchPayment (or portion thereof) was received by such Lender or L/C Issuer, as applicable, to the date such amount isrepaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the AdministrativeAgent in accordance with banking industry rules on interbank compensation from time to time in effect. (c) The Borrower and each other Loan Party hereby agrees that (x) in the event an erroneousPayment (or portion thereof) is not recovered from any Lender or L/C Issuer that has received such Payment (orportion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender orsuch L/C Issuer, as applicable with respect to such amount and (y) an erroneous Payment shall not pay, prepay,repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party except, in eachcase, to the extent such erroneous Payment is, and with respect to the amount of such erroneous Payment that is,comprised of funds of the Borrower or any other Loan Party. (d) Each party’s obligations under this Section 9.13 shall survive the resignation or replacementof the Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender or L/CIssuer, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under anyLoan Document. Section 9.14Borrower Communications. (a) The Administrative Agent, the Lenders and the L/C Issuers agree that the Borrowermay, but shall not be obligated to, make any Borrower Communications to the Administrative Agentthrough an electronic platform chosen by the Administrative Agent to be its electronic transmission system(the “Approved Borrower Portal”). (b) Although the Approved Borrower Portal and its primary web portal are secured withgenerally-applicable security procedures and policies implemented or modified by the Administrative Agentfrom time to time (including, as of the First Amendment Effective Date, a user ID/password authorizationsystem), each of the Lenders, each of the L/C Issuers and the Borrower acknowledges and agrees that thedistribution of material through an electronic medium is not necessarily secure, that the AdministrativeAgent is not responsible for approving or vetting the representatives or contacts of the Borrower that areadded to the Approved Borrower Portal, and that there may be confidentiality and other risks associatedwith such distribution. Each of the Lenders, each of the L/C Issuers and the Borrower hereby approvesdistribution of Borrower Communications through the Approved Borrower Portal and understands andassumes the risks of such distribution. (c) THE APPROVED BORROWER PORTAL IS PROVIDED “AS IS” AND “ASAVAILABLE”. THE APPLICABLE PARTIES (AS DEFINED BELOW) DO NOT WARRANT THEACCURACY OR COMPLETENESS OF THE BORROWER 169
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COMMUNICATIONS, OR THE ADEQUACY OF THE APPROVED BORROWER PORTAL ANDEXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVEDBORROWER PORTAL AND THE BORROWER COMMUNICATIONS. NO WARRANTY OF ANYKIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRDPARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THEAPPLICABLE PARTIES IN CONNECTION WITH THE BORROWER COMMUNICATIONS OR THEAPPROVED BORROWER PORTAL. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, ANYARRANGER, ANY SYNDICATION AGENT OR ANY OF THEIR RESPECTIVE RELATED PARTIES(COLLECTIVELY, “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO ANY LOAN PARTY, ANYLENDER, ANY L/C ISSUER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND,INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OFTHE BORROWER’S TRANSMISSION OF BORROWER COMMUNICATIONS THROUGH THEINTERNET OR THE APPROVED BORROWER PORTAL. (d) Each of the Lenders, each of the L/C Issuers and the Borrower agrees that theAdministrative Agent may, but (except as may be required by applicable law) shall not be obligated to, storethe Borrower Communications on the Approved Borrower Portal in accordance with the AdministrativeAgent’s generally applicable document retention procedures and policies. (e) Nothing herein shall prejudice the right of the Borrower to give any notice or othercommunication pursuant to any Loan Document in any other manner specified in such Loan Document. Article 10.MISCELLANEOUS Section 10.01Amendments, Etc. Except as set forth below in this Section 10.01, no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent (or signed by the Administrative Agent on behalf of and with the written consent of the Required Lenders), and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that (i) any term or provision of Section 7.11 or the definition of “Total Net Leverage Ratio” (or any of its component definitions (as used solely in such Section but not as used in other Sections of this Agreement)) may be amended, waived, consented to or otherwise modified with the consent of the Required Revolving Credit Lenders (and no other consents from any other Lenders or group thereof shall be necessary unless any such group of Lenders is given the benefit of such covenant in the applicable Joinder Agreement, in which case such additional consent of such Lenders shall be required to the extent set forth in such Joinder Agreement); and (ii) no such amendment, waiver, consent or other modification shall (and/or, in the case of clause (l) below, no document or instrument effectuating any subordination referred to therein shall): 170
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(a) waive any condition set forth in Section 4.01 without the written consent of each Lenderadversely affected thereby; (b) without limiting the generality of clause (a) above, waive any condition set forth in Section4.02 as to any Credit Extension under the Revolving Credit Facility without the written consent of the RequiredRevolving Credit Lenders; (c) extend or increase the Commitment of any Lender (or reinstate any Commitment terminatedpursuant to Section 2.06 or Section 8.02) without the written consent of such Lender; (d) postpone any date fixed by this Agreement or any other Loan Document for any payment(excluding mandatory prepayments pursuant to Section 2.05(b)) of principal, interest, fees or other amounts due tothe Lenders (or any of them) or any scheduled or mandatory reduction of any Facility hereunder or under any otherLoan Document without the written consent of each Appropriate Lender directly affected thereby; (e) reduce the principal of, or the rate of interest specified herein on, any Loan or L/CBorrowing, or any fees or other amounts payable hereunder or under any other Loan Document without the writtenconsent of each Lender directly affected thereby; provided, however, that only the consent of the Required Lendersshall be necessary to amend (i) the definition of “Default Rate” or to waive any obligation of the Borrower to payinterest or Letter of Credit Fees at the Default Rate and (ii) except as set forth in clause (i) of the first proviso to thisSection 10.01, any financial ratio (including any defined term used therein) or any definition relating to any (x)financial calculation or (y) currency exchange rate calculation affecting compliance with Sections 7.01, 7.02 and7.03 with respect to the amount of Liens, Investments, or Indebtedness in currencies other than U.S. Dollarshereunder even if, in the case of clause (x) and (y), the effect of such amendment would be to reduce the rate ofinterest on any Loan or L/C Borrowing or to reduce any fee payable hereunder; (f) change (i) Section 8.03 of this Agreement or Section 6.5 of the Collateral Agreement in amanner that would alter the order of application or pro rata sharing of payments required thereby without thewritten consent of each Lender or (ii) the definition of “Applicable Percentage,” the definition of “ApplicableRevolving Credit Percentage”, the order of application or pro rata nature of application of any reduction in theCommitments or any prepayment of Loans within or among the Facilities from the application thereof set forth inthe applicable provisions of Sections 2.05(a), 2.05(b) or 2.06(c), or other provisions in respect of the pro rataapplication of payments or offers hereunder under Section 2.12, 2.13, 2.14, 2.15, 2.16 or 10.06(b)(vii) in anymanner that materially and adversely affects the Lenders under a Facility or Class without the written consent ofthe Lenders with respect to the relevant Facility or Class adversely affected thereby; (g) change (i) any provision of this Section 10.01 or the definition of “Required Lenders” or anyother provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwisemodify any rights hereunder or make any determination or grant any consent hereunder (other than the definitionsspecified in clause (ii) of this Section 10.01(g)), without the written consent of each Lender; (ii) the definition of“Required Lenders”, “Required Facility Lenders” or “Required Revolving Credit Lenders” without the writtenconsent of each Lender under the applicable Facility or (iii) any other provision of this Agreement or the otherLoan Documents in a manner that creates a materially disadvantaged Class or otherwise materially adverselyaffects a Class, without the written consent of the Required Lenders with respect to such Class determined in amanner consistent with the definition of “Required Facility Lenders” (as if such Class constituted a Facility forpurposes of such definition); 171
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(h) release all or substantially all of the value of the Guarantees of the Obligations in anytransaction or series of transactions without the written consent of each Lender, except to the extent the release ofany Guarantor is permitted pursuant to Section 9.10 (in which case such release may be made by the AdministrativeAgent acting alone); (i) release all or substantially all of the Collateral in any transaction or series of relatedtransactions without the written consent of each Lender, except to the extent the release of any Collateral ispermitted pursuant to Section 9.10 (in which case such release may be made by the Administrative Agent actingalone); (j) impose any greater restriction on the ability of any Lender under a Facility to assign any ofits rights or obligations hereunder without the written consent of the Required Facility Lenders with respect to therelevant Facility; (k) amend the definition of “Alternative Currency” without the written consent of eachRevolving Credit Lender and L/C Issuer; (l) except, in each case, as otherwise permitted by this Agreement as of the date hereof,subordinate the Liens securing the Obligations to Liens securing any other Indebtedness for borrowed money orsubordinate payment of the Obligations to any other Indebtedness for borrowed money or subordinate theobligations in respect of the Guarantees to any other Indebtedness for borrowed money without the written consentof each Lender adversely affected thereby; or (m) amend clause (x) of Section 10.06(a) without the written consent of each Lender; and, provided, further, that (i) no amendment, waiver, consent or modification shall, unless in writing and signed by the applicable L/C Issuer in addition to the Lenders required above, affect the rights or duties of such L/C Issuer under this Agreement or any Issuer Document, in each case, relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver, consent or modification shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document, (iii) no amendment, waiver, consent or modification shall, unless in writing and signed by any Person that formerly served as an administrative agent under this Agreement and the other Loan Documents in addition to the Lenders required above and the Administrative Agent, that adversely affects the rights or duties, taken as a whole, of such former administrative agent solely in such capacity under this Agreement or any other Loan Document and (iv) any Fee Letter may be amended, and rights or privileges thereunder may be waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary contained herein, if, following the Closing Date, the Administrative Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature, in each case, in any provision of this Agreement or any other Loan Document, then the Administrative Agent and the Borrower shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to this Agreement or any other Loan Document if the same is not objected to in writing by the Required Lenders within three Business Days following receipt of notice thereof. It is understood that posting such amendment electronically on 172
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IntraLinks/IntraAgency, SyndTrak or another relevant website with notice of such posting by the Administrative Agent to the Required Lenders shall be deemed adequate receipt of notice thereof. Section 10.02Notices; Effectiveness; Electronic Communication . (a) Notices Generally. Except as provided in Section 10.02(b), all notices and othercommunications provided for herein shall be in writing and shall be delivered by hand or overnight courier service,mailed by certified or registered mail or sent by facsimile as follows: (i) if to the Borrower, the Administrative Agent or any L/C Issuer party hereto on theClosing Date, to the address, facsimile number, or electronic mail address specified for such Person onSchedule 10.02; and (ii) if to any other Lender, to the address, facsimile number, or electronic mail addressspecified in its Administrative Questionnaire. Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in Section 10.02(b) shall be effective as provided in such Section 10.02(b). (b) Electronic Communications. Notices and other communications to the Lenders and the L/CIssuers hereunder may be delivered or furnished by electronic communication (including e-mail and Internet orintranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shallnot apply to notices to any Lender or L/C Issuer pursuant to Article 2 if such Lender or L/C Issuer, as applicable,has notified the Administrative Agent that it is incapable of receiving notices under such Article by electroniccommunication. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices andother communications to it hereunder by electronic communications pursuant to procedures approved by it,provided that approval of such procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e- mail address shall be deemed received uponunless the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgment) receives a notice of non-delivery, provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) ofor notification that such notice or communication is available and identifying the website address therefor. 173
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(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THEAGENT PARTIES DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWERMATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FORERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND,EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESSFOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROMVIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THEBORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of itsRelated Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender, any L/C Issueror any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract orotherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower Materials throughthe Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a courtof competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence orwillful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liabilityto the Borrower, any Lender, any L/C Issuer or any other Person for indirect, special, incidental, consequential orpunitive damages (as opposed to direct or actual damages). (d) Change of Address, Etc. Each of the Borrower, the Administrative Agent and the L/C Issuersmay change its address or facsimile for notices and other communications hereunder by notice to the other partieshereto. Each Lender may change its address or facsimile for notices and other communications hereunder by noticeto the Borrower, the Administrative Agent and the L/C Issuers. In addition, each Lender agrees to notify theAdministrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effectiveaddress, contact name, facsimile number and electronic mail address to which notices and other communicationsmay be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause atleast one individual at or on behalf of such Public Lender to at all times have selected the “Private SideInformation” or similar designation on the content declaration screen of the Platform in order to enable such PublicLender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law,including United States Federal and state securities Laws, to make reference to Borrower Materials that are notmade available through the “Public Side Information” portion of the Platform and that may contain MNPI withrespect to the Borrower or any of its Subsidiaries or their respective securities for purposes of United States Federalor state securities laws. (e) Reliance by Administrative Agent, L/C Issuers and Lenders. The Administrative Agent, theL/C Issuers and the Lenders shall be entitled to rely and act upon any notices purportedly given by or on behalf ofthe Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were notpreceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by therecipient, varied from any confirmation thereof. The Borrower shall indemnify the Administrative Agent, the L/CIssuers, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resultingfrom the reliance by such Person on each notice purportedly given by or on behalf of the Borrower except to theextent that such losses, claims, damages, liabilities or related expenses are determined by a court of competentjurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconductof such Person. All telephonic communications with the Administrative Agent may be recorded by theAdministrative Agent, and each of the parties hereby consents to such recording. Section 10.03No Waiver; Cumulative Remedies; Enforcement 174
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. No failure by any Lender, any L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and the L/C Issuers and, in respect of the Collateral Documents, any other Secured Party; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) each of the L/C Issuers from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.13), or (d) any Secured Party from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b), (c), and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders. Section 10.04Expenses; Indemnity; Damage Waiver . (a) Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket expensesincurred by the Administrative Agent, the Arrangers and itstheir respective Affiliates (including but not limited toexpenses associated with the syndication of the Facilities, due diligence efforts, the reasonable fees, charges anddisbursements of counsel, limited to a single counsel and, in each relevant jurisdiction, a single local counsel andone additional local counsel in each applicable jurisdiction for any such person in the event of a conflict of interest(including, without limitation, reasonable and actual travel expenses), in connection with the syndication of thecredit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of thisAgreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereofor thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) allreasonable out-of-pocket expenses incurred by any L/C Issuer in connection with the issuance, amendment,renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocketexpenses incurred by the Administrative Agent, any Lender or any L/C Issuer (including the fees, charges anddisbursements of any counsel for the Administrative Agent, the Lenders and the L/C Issuers (but limited to the fees,disbursements, and other charges of a single 175
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law firm for the Administrative Agent, the Lenders and the L/C Issuers and, in each relevant jurisdiction, a singlelocal counsel, in each case, representing the Administrative Agent, all Lenders and all L/C Issuers, and oneadditional counsel or local counsel, as applicable, in each applicable jurisdiction for any such person in the event ofa conflict of interest)), in connection with the enforcement or protection of its rights (A) in connection with thisAgreement and the other Loan Documents, including its rights under this Section or (B) in connection with theLoans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during anyworkout, restructuring or negotiations in respect of such Loans or Letters of Credit. (b) Indemnification. Each Loan Party shall indemnify the Administrative Agent (and any sub-agent thereof), each Arranger, each Lender and each L/C Issuer and each Related Party of any of the foregoingPersons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, anyand all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements ofany external counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees andtime charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by anyIndemnitee or asserted against any Indemnitee by any third party or by the Borrower or any other Loan Partyarising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other LoanDocument or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto oftheir respective obligations hereunder or thereunder, the consummation of the Transactions and the transactionscontemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and itsRelated Parties only, the administration of this Agreement and the other Loan Documents (except for any taxesgoverned by Section 3.01), other than any Taxes that represent losses, claims or damages arising from any non-Taxclaim), (ii) any Loan or Letter of Credit or the use or intended use of the proceeds therefrom (including any refusalby any L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connectionwith such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or allegedpresence or release of Hazardous Materials on, through, under or from any property currently or formerly owned,leased or operated by the Borrower or any of its Restricted Subsidiaries, or any Environmental Claim orEnvironmental Liability related in any way to any of the Loan Parties or any of their respective RestrictedSubsidiaries or (iv) any claim, litigation, investigation, inquiry or proceeding relating to any of the foregoing,whether based on contract, tort or any other theory, whether brought by a Lender, a third party or by the Borroweror any other Loan Party, and regardless of whether any Indemnitee is a party thereto (collectively, the“Indemnified Liabilities”); provided that such indemnity shall not, as to any Indemnitee, be available to the extentthat such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdictionby final and nonappealable judgment to have resulted from (x) the gross negligence, bad faith or willful misconductof such Indemnitee or (y) any proceedings between or among Indemnitees (other than any claims against anIndemnitee in its capacity as Administrative Agent, Arranger, Co-Manager or similar role under any Facility) thatdoes not involve any act or omission of the Borrower or any of its Subsidiaries. (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails toindefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to theAdministrative Agent (or any sub-agent thereof), any Arranger, any L/C Issuer or any Related Party of any of theforegoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), suchArranger, such L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable Percentage(determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of suchunpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or relatedexpense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent),such Arranger or such L/C Issuer in its capacity as such, or against any 176
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Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), such Arrangeror such L/C Issuer in connection with such capacity; provided that in respect of the proviso in Section 10.04(b), it isunderstood and agreed that any action taken by the Administrative Agent (and any sub-agent thereof) and/or any ofits Related Parties in accordance with the directions of the Required Lenders or any other appropriate group ofLenders pursuant to Section 10.01 shall not be deemed to constitute gross negligence or willful misconduct forpurposes of such proviso. The obligations of the Lenders under this subsection (c) are subject to the provisions ofSection 2.12(e). (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, theBorrower waives and releases, and hereby waives, any claim against the Administrative Agent (and any sub-agentthereof), any Lender, any L/C Issuer or their respective affiliates or their or their respective affiliates’ officers,directors, employees, advisors and agents (each, a “Lender Related Person”) , on any theory of liability, forspecial, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, inconnection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrumentcontemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use ofthe proceeds thereof. No Lender Related Person shall be liable for any damages arising from the use by unintendedrecipients of any information or other materials distributed to such unintended recipients by such Lender RelatedPerson through telecommunications, electronic or other information transmission systems in connection with thisAgreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct oractual damages resulting from the gross negligence or willful misconduct of such Lender Related Person asdetermined by a final and nonappealable judgment of a court of competent jurisdiction. (e) Payments. All amounts due under this Section shall be payable not later than ten BusinessDays after demand therefor. (f) Survival. The agreements in this Section 10.04 shall survive the resignation of theAdministrative Agent any Arranger and any L/C Issuer, the replacement of the Administrative Agent, anyArranger, any Lender or any L/C Issuer, the termination of the Aggregate Commitments, the repayment,satisfaction or discharge of all the other Obligations and the termination of this Agreement. Section 10.05Payments Set Aside . To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent, any L/C Issuer or any Lender, or the Administrative Agent, any L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, such L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred and (b) each Lender and L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Effective Rate from time to time in effect. The obligations of the Lenders and the L/C Issuers 177
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under clause (b) of the preceding sentence shall survive the payment in full of the Obligations, the termination of the Commitments and the termination of this Agreement. Section 10.06Successors and Assigns . (a) Successors and Assigns Generally. The provisions of this Agreement shall be binding uponand inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, exceptthat (x) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without theprior written consent of the Administrative Agent and each Lender and (y) no Lender may assign or otherwisetransfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions ofsubsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) ofthis Section or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f)of this Section (and any other attempted assignment or transfer by the Borrower shall be null and void). Nothing inthis Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto,their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of thisSection and, to the extent expressly contemplated hereby, the Indemnitees and the Related Parties of each of theAdministrative Agent, the L/C Issuers and the Lenders) any legal or equitable right, remedy or claim under or byreason of this Agreement. (b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all ora portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and theLoans (including for purposes of this subsection (b), participations in L/C Obligations) at the time owing to it);provided that any such assignment shall be subject to the following conditions: (i) Minimum Amounts. (A) In the case of an assignment of the entire remaining amount of the assigningLender’s Commitment under any Facility and the Loans at the time owing to it under such Facility,no minimum amount need be assigned; and (B) in any case not described in subsection (b)(i)(A) of this Section, the aggregateamount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if theCommitment is not then in effect, the principal outstanding balance of the Loans (including suchLender’s participations in L/C Obligations) of the assigning Lender subject to each such assignment,determined as of the date the Assignment and Assumption with respect to such assignment isdelivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment andAssumption, as of the Trade Date, shall not be less than $5,000,000 (and whole multiples of$1,000,000 in excess thereof), in the case of any assignment in respect of the Revolving CreditFacility, or $1,000,000 (and whole multiples of $1,000,000 in excess thereof), in the case of anyassignment in respect of the Term Loans, unless each of the Administrative Agent and, so long as noEvent of Default under Sections 8.01(a), (f) or (g) has occurred and is continuing, the Borrowerotherwise consents (each such consent not to be unreasonably withheld or delayed); provided,however, that concurrent assignments to members of an Assignee Group and concurrent assignmentsfrom members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee andmembers of its Assignee Group) will be treated as a single 178
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assignment for purposes of determining whether such minimum amount has been met. (ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of aproportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect tothe Loans or the Commitment assigned, except that this clause (ii) shall not prohibit any Lender fromassigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis. (iii) Required Consents. No consent shall be required for any assignment except to theextent required by subsection (b)(i)(B) of this Section and, in addition: (A) the consent of the Borrower (such consent not to be unreasonably withheld ordelayed) shall be required unless (1) an Event of Default under Sections 8.01(a), (f) or (g) hasoccurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, anAffiliate of a Lender or an Approved Fund; provided that the Borrower shall be deemed to haveconsented to any such assignment unless it shall object thereto by written notice to theAdministrative Agent within five (5) Business Days after having received notice thereof in the caseof assignments of any Term Loans and ten (10) Business Days after having received notice thereofin the case of assignments of the Revolving Credit Facility; (B) the consent of the Administrative Agent (such consent not to be unreasonablywithheld or delayed) shall be required for assignments in respect of (1) any Commitment if suchassignment is to a Person that is not a Lender with a Commitment in respect of the applicableFacility, an Affiliate of such Lender or an Approved Fund with respect to such Lender or (2) anyTerm Loan to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund; and (C) the consent of the L/C Issuers (each such consent not to be unreasonablywithheld or delayed) shall be required for any assignment in respect of any Revolving CreditFacility. (iv) Assignment and Assumption. The parties to each assignment shall execute and deliverto the Administrative Agent an Assignment and Assumption, together with a processing and recordation feein the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, electto waive such processing and recordation fee in the case of any assignment. The assignee, if it is not aLender, shall deliver to the Administrative Agent an Administrative Questionnaire. (v) No Assignment to Certain Persons. No such assignment shall be made (A) to theBorrower or any of the Borrower’s Affiliates or Subsidiaries, except as provided below in clause (vii) or (B)to a Defaulting Lender, a Disqualified Lender or any Person who, upon becoming a Lender hereunder,would constitute any of the foregoing Persons described in this clause (B). (vi) No Assignment to Natural Persons. No such assignment shall be made to a naturalperson (or a holding company, investment vehicle or trust for, or owned and operated for the primarybenefit of, a natural Person). 179
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(vii) Borrower Purchases. Notwithstanding anything to the contrary contained in thisSection 10.06 or any other provision of this Agreement, so long as no Event of Default under Sections8.01(a), (f) or (g) has occurred and is continuing or would result therefrom, the Borrower may repurchaseoutstanding Term Loans of any Facility on the following basis: (A) the Borrower may conduct one or more auctions (each, an “Auction”) torepurchase all or any portion of the applicable Term Loans of a given Class (such Term Loans, the“Offer Loans”) of Term Lenders; provided that (1) the Borrower delivers to the AdministrativeAgent (for distribution to all Lenders holding Term Loans of such Class) a notice of the aggregateprincipal amount of the Offer Loans that will be subject to such Auction no later than 12:00 p.m. atleast five Business Days (or such shorter period as may be agreed to by the Administrative Agent) inadvance of a proposed consummation date of such Auction indicating (a) the date on which theAuction will conclude, (b) the maximum principal amount of the Offer Loans the Borrower iswilling to purchase in the Auction and (c) the range of discounts to par at which the Borrower wouldbe willing to repurchase the Offer Loans; (2) the minimum dollar amount of the Auction shall be noless than $10,000,000 or whole multiples of $1,000,000 in excess thereof; (3) the Borrower shallhold the Auction open for a minimum period of three Business Days; (4) a Lender who elects toparticipate in the Auction may choose to tender all or part of such Lender’s Offer Loans; (5) theAuction shall be made to the Lenders holding the Offer Loans (and purchases of Offer Loans heldby Lenders who elect to participate shall be made by the Borrower) on a pro rata basis in accordancewith the respective principal amount then due and owing to the applicable Term Lenders; and (6) theAuction shall be conducted pursuant to such procedures as the Administrative Agent may establishwhich are consistent with this Section 10.06 and are reasonably acceptable to the Borrower, whichprocedures must be followed by a Lender in order to have its Offer Loans repurchased; (B) with respect to all repurchases made pursuant to this Section 10.06(vii), (1)the Borrower shall pay to the applicable selling Lender all accrued and unpaid interest, if any, on therepurchased Offer Loans to the date of repurchase of such Offer Loans, (2) such repurchases shallnot be deemed to be optional prepayments pursuant to Section 2.05(a), (3) the amount of the Loansso repurchased shall be applied on a pro rata basis to reduce the scheduled remaining installments ofprincipal on the Offer Loans, and (4) the purchase consideration for such Auction shall in no eventbe funded with the proceeds of Revolving Credit Loans; and (C) following a repurchase pursuant to this Section 10.06, the Offer Loans sorepurchased shall, without further action by any Person, be deemed cancelled for all purposes and nolonger outstanding (and may not be resold) for all purposes of this Agreement and all the other LoanDocuments, including, but not limited to (1) the making of, or the application of, any payments tothe Lenders under this Agreement or any other Loan Document, (2) the making of any request,demand, authorization, direction, notice, consent or waiver under this Agreement or any other LoanDocument or (3) the determination of Required Lenders, or for any similar or related purpose, underthis Agreement or any other Loan Document. In connection with any Term Loans repurchased andcancelled pursuant to this Section 10.06, the Administrative Agent is authorized to make appropriateentries in the Register to reflect any such cancellation. 180
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(viii) Certain Additional Payments. In connection with any assignment of rights andobligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, inaddition to the other conditions thereto set forth herein, the parties to the assignment shall make suchadditional payments to the Administrative Agent in an aggregate amount sufficient, upon distributionthereof as appropriate (which may be outright payment, purchases by the assignee of participations orsubparticipations, or other compensating actions, including funding, with the consent of the Borrower andthe Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by theDefaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x)pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the AdministrativeAgent and any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) itsfull pro rata share of all Loans and participations in Letters of Credit in accordance with its ApplicablePercentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of anyDefaulting Lender hereunder shall become effective under applicable Law without compliance with theprovisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lenderfor all purposes of this Agreement until such compliance occurs. Subject to acceptance and recording in the Register thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section. Notwithstanding anything contained herein to the contrary, any assignment or transfer by a Lender (including to a Disqualified Lender) of rights or obligations under this Agreement that does not comply with this Section 10.06 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.06(d) below. (c) Register. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent ofthe Borrower (and such agency being solely for Tax purposes), shall maintain at the Administrative Agent’s Officea copy of each Assignment and Assumption delivered to it and a register for the recordation of the names andaddresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans andL/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). Upon itsreceipt of a duly completed and executed Assignment and Assumption, 181
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the Administrative Agent shall record the information contained therein in the Register. The entries in the Registershall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treateach Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for allpurposes of this Agreement, notwithstanding notice to the contrary. In addition, the Administrative Agent shallmaintain on the Register information regarding the designation, and revocation of designation, of any Lender as aDefaulting Lender. The Register is intended to cause each Loan and other obligation hereunder to be in registeredform within the meaning of Section 5f.103-1(c) of the United States Treasury Regulations and Proposed TreasuryRegulations Section 1.163-5(b) (or any amended or successor version) and within the meaning of Section 163(f),871(h)(2) and 881(c)(2) of the Code. The Register shall be available for inspection by the Borrower and any Lender(with respect to such Lender’s entry), at any reasonable time and from time to time upon reasonable prior notice. (d) Participations. Any Lender may at any time, without the consent of, or notice to, theBorrower, any L/C Issuer or the Administrative Agent, sell participations to any Person (other than a natural person(or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a naturalPerson), a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a“Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all ora portion of its Commitment and/or Loans (including such Lender’s participations in L/C Obligations) owing to it);provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shallremain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower,the Administrative Agent, the Lenders and the L/C Issuers shall continue to deal solely and directly with suchLender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in clause (ii) of the first proviso to Section 10.01 requiring the consent of each Lender affected thereby and that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided, further that such agreement or instrument shall provide that the Participant understands that the value of the loan asset (including Participant’s pro rata share thereof) may increase or decrease based on fluctuations in currency exchange rates and agrees that any losses (gains) experienced as a result of changes in currency exchange rates shall be shared by such Participant in accordance with the Participant’s pro rata share. To the extent permitted by law, each Participant shall also be entitled to the benefits of Section 10.08 as though it were a Lender, provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an non-fiduciary agent of the Borrower (such agency being solely for Tax purposes), maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information 182
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relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under United States Treasury Regulations Section 5f.103-1(c) and Proposed Treasury Regulations Section 1.163-5(b) (or, in each case, any amended or successor version) and within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (e) Limitations upon Participant Rights. A Participant shall not be entitled to receive any greaterpayment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect tothe participation sold to such Participant, unless the sale of the participation to such Participant is made with theBorrower’s prior written consent or except to the extent such entitlement to receive a greater payment results froma Change in Law that occurs after the Participant acquired the applicable participation. A Participant shall beentitled to the benefits of Section 3.01 if such Participant agrees, for the benefit of the Borrower, to comply withSection 3.01(e) as though it were a Lender (provided that all forms required under Section 3.01(e) shall instead bedelivered to the applicable Lender). (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all orany portion of its rights under this Agreement (including under its Note, if any) to secure obligations of suchLender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no suchpledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgeeor assignee for such Lender as a party hereto. (g) Resignation as L/C Issuer after Assignment. Notwithstanding anything to the contrarycontained herein, if at any time a Lender serving as an L/C Issuer assigns all of its Revolving Credit Commitmentand Revolving Credit Loans pursuant to subsection (b) above, such Lender may upon 30 days’ notice to theBorrower and the other Lenders, resign as an L/C Issuer. In the event of any such resignation as L/C Issuer, theBorrower shall be entitled to appoint from among the Revolving Credit Lenders a successor L/C Issuer hereunder ifsuch Revolving Credit Lender is willing to act in such capacity; provided, however, that no failure by the Borrowerto appoint any such successor shall affect the resignation of the retiring entity as L/C Issuer. If any entity serving asL/C Issuer resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of an L/C Issuerhereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as an L/C Issuerand all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans orfund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). Upon the appointment of asuccessor L/C Issuer and the acceptance of such appointment by such successor, (a) such successor shall succeed toand become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and (b) thesuccessor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at thetime of such succession or make other arrangements reasonably satisfactory to the retiring L/C Issuer to effectivelyassume the obligations of such L/C Issuer with respect to such Letters of Credit. (h) Disqualified Lenders. 183
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(i) No assignment or participation shall be made to any Person that was a DisqualifiedLender as of the date (the “Trade Date”) on which the assigning or transferring Lender entered into abinding agreement to sell and assign, or grant a participation in, all or a portion of its rights and obligationsunder this Agreement, as applicable, to such Person. For the avoidance of doubt, no assignment orparticipation shall be retroactively invalidated pursuant to this Section 10.06(h) if the Trade Date thereforoccurred prior to the assignee’s or participant’s becoming a Disqualified Lender. (ii) The Administrative Agent and each assignor of a Loan or Commitment or seller of aparticipation hereunder shall be entitled to rely conclusively on a representation of the assignee Lender orParticipant in the relevant Assignment and Assumption or participation agreement, as applicable, that suchassignee or purchaser is not a Disqualified Lender. The Administrative Agent shall have the right, and theBorrower hereby expressly authorizes the Administrative Agent, to provide the list of Disqualified Lendersto each Lender upon request. (iii) If any assignment or participation is made to any Disqualified Lender without theBorrower’s prior written consent in violation of clause (i) above, the Borrower may, at its sole expense andeffort, upon notice to the applicable Disqualified Lender and the Administrative Agent, (A) terminate anyRevolving Credit Commitment of such Disqualified Lender and repay all obligations of the Borrowerowing to such Disqualified Lender in connection with such Revolving Credit Commitment or in accordancewith and subject to the provisions of Section 10.13, require such Disqualified Lender to assign and delegateall of its interests, rights (other than its existing rights to payments pursuant to Section 3.01 or Section 3.04)and obligations under this Agreement and the related Loan Documents to an Eligible Assignee as if suchDisqualified Lender were required to do so pursuant to Section 10.13 and (B) in the case of Term Loansheld by a Disqualified Lender, (1) purchase or prepay such Term Loans by paying the lesser of (x) theprincipal amount thereof and (y) the amount that such Disqualified Lender paid to acquire such Term Loansand/or (2) require such Disqualified Lender to assign, without recourse (in accordance with and subject tothe restrictions contained in this Section 10.06) all of its interest, rights and obligations under thisAgreement to one or more Eligible Assignees that agrees to such assignment in writing at a price equal tothe lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Lender paid toacquire such interests, rights and obligations. (iv) Notwithstanding anything to the contrary contained in this Agreement, DisqualifiedLenders (1) will not have the right to (x) receive information, reports or other materials provided to theAdministrative Agent or the Lenders by the Borrower or any of its Subsidiaries, the Administrative Agent orany other Lender, (y) attend or participate (including by telephone) in meetings attended by any of theLenders and/or the Administrative Agent, or (z) access any electronic site established for the Lenders orconfidential communications from counsel to or financial advisors of the Administrative Agent or theLenders and (2) (x) for purposes of any consent to any amendment, waiver or modification of, or any actionunder, and for the purpose of any direction to the Administrative Agent or any Lender to undertake anyaction (or refrain from taking any action) under this Agreement or any other Loan Document, eachDisqualified Lender will be deemed to have consented to such matter in the same proportion as the Lendersthat are not Disqualified Lenders consented to such matter; provided, however, that any DisqualifiedLender’s consent shall be required for any amendment, waiver or other modification described in clause (c)of Section 10.01 with respect to any increase to the Commitments of such Disqualified Lender, and (y) forpurposes of voting on any plan of reorganization pursuant to Section 1126 of the Bankruptcy Code of theUnited States or any similar plan or proposal under any other 184
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Debtor Relief Law with respect to the Borrower or any of its Subsidiaries, each Disqualified Lender herebyagrees (1) not to vote on such plan, (2) if such Disqualified Lender does vote on such plan notwithstandingthe restriction in the immediately foregoing clause (1), such vote will be deemed not to be in good faith andshall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code of the United States (or anysimilar provision in any other similar federal, state or foreign law affecting creditor’s rights, including anyDebtor Relief Law), and such vote shall not be counted in determining whether the applicable class hasaccepted or rejected such plan in accordance with Section 1126(c) of the Bankruptcy Code of the UnitedStates (or any similar provision in any other similar federal, state or foreign law affecting creditor’s rightsincluding any Debtor Relief Laws) and (3) not to contest any request by any party for a determination bythe bankruptcy court (or other applicable court of competent jurisdiction) effectuating the foregoing clause(2). (v) Notwithstanding anything to the contrary in this Agreement, the Loan Parties and theLenders acknowledge and agree that in no event shall the Administrative Agent or any of its Affiliates orRelated Parties be responsible or have any liability for, or have any duty to ascertain, inquire into, monitoror enforce, compliance with the provisions hereof relating to Disqualified Lenders. Without limiting thegenerality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor orinquire as to whether any Lender or Participant or prospective Lender or Participant is a DisqualifiedLender or (y) have any liability with respect to or arising out of any assignment or participation of Loans, ordisclosure of confidential information, to any Disqualified Lender. Section 10.07Treatment of Certain Information; Confidentiality . Each of the Administrative Agent, the Lenders and the L/C Issuers agrees to maintain the confidentiality of the Information, except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, trustees, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over it or its Affiliates (including any self-regulatory authority, such as the National Association of Insurance Commissioners), in which case each of the Administrative Agent, the Lenders and the L/C Issuers agrees to inform the Borrower promptly thereof prior to such disclosure to the extent not prohibited by law, rule or regulation, as applicable (except with respect to any audit or examination conducted by bank accountants or any governmental or regulatory authority exercising examination or regulatory authority over the Administrative Agent, such Lender or such L/C Issuer) and to use commercially reasonable efforts to ensure that any such information so disclosed is accorded confidential treatment, (c) pursuant to the order of any court or administrative agency or in any pending legal or administrative proceeding, or otherwise as required by applicable law or compulsory legal process or to the extent required by applicable laws or regulations or by any subpoena or similar legal process, in which case each of the Administrative Agent, the Lenders and the L/C Issuers agrees to inform the Borrower promptly thereof prior to such disclosure to the extent not prohibited by law, rule or regulation, as applicable (except with respect to any audit or examination conducted by bank accountants or any governmental or regulatory authority exercising examination or regulatory authority over the Administrative Agent, such Lender or 185
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such L/C Issuer) and to use commercially reasonable efforts to ensure that any such information so disclosed is accorded confidential treatment, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee invited to be a Lender or (ii) any direct, indirect, actual or prospective counterparty (or its advisors) to any swap or, derivative or other transaction relatingunder which payments are to be made by reference to the Borrower and its obligations, this Agreement, or payments hereunder, (g) with the consent of the Borrower, (h) on a confidential basis to (i) any rating agency in connection with rating the Borrower or its Restricted Subsidiaries or any Facility or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to any Facility or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section, (y) becomes available to the Administrative Agent, any Lender, any L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower or (z) is independently developed by the Administrative Agent, any Lender, any L/C Issuer or any of their respective Affiliates without reliance on any confidential Information of the Borrower and its Subsidiaries. In addition, each of the Administrative Agent, the Lenders and the L/C Issuers may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Administrative Agent, the Lenders and the L/C Issuers in connection with the administration of this Agreement, the other Loan Documents and the Credit Extensions. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. Each of the Administrative Agent, the Lenders and the L/C Issuers acknowledges that (a) the Information may include MNPI concerning the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of MNPI and (c) it will handle such MNPI in accordance with applicable Law, including United States Federal and state securities Laws. For the avoidance of doubt, nothing in this Section 10.07 shall prohibit any Person from voluntarily disclosing or providing any Information within the scope of this confidentiality provision to any governmental, regulatory or self-regulatory organization (any such entity, a “Regulatory Authority”) to the extent that any such prohibition on disclosure set forth in this Section 10.07 shall be prohibited by the laws or regulations applicable to such Regulatory Authority. Section 10.08Right of Setoff 186
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. If an Event of Default shall have occurred and be continuing, each Lender, each L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, such L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under this Agreement or any other Loan Document to such Lender or such L/C Issuer, irrespective of whether or not such Lender or such L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower may be contingent or unmatured or are owed to a branch or office of such Lender or such L/C Issuer different from the branch or office holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.16 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, each L/C Issuer and their respective Affiliates under this Section are in addition to all other rights and remedies (including other rights of setoff) that such Lender, such L/C Issuer or their respective Affiliates may have under applicable Law or otherwise. Each Lender and L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application. Section 10.09Interest Rate Limitation . Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the unpaid principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the Administrative Agent or any Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude optional prepayments and the effects thereof and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder. Section 10.10Counterparts; Integration; Effectiveness . This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the Fee Letters and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to 187
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the subject matter hereof. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement. Section 10.11 Survival of Representations and Warranties . All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent, each Lender and each L/C Issuer, regardless of any investigation made by the Administrative Agent, any Lender or any L/C Issuer or on their behalf and notwithstanding that the Administrative Agent, any Lender or any L/C Issuer may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation (other than contingent indemnification obligations as to which no claim has been asserted and obligations and liabilities under Secured Cash Management Agreements and Secured Hedge Agreements) hereunder shall remain unpaid or unsatisfied, any Commitment remains in effect or any Letter of Credit shall remain outstanding. Section 10.12Severability . If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, then, to the fullest extent permitted by law, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 10.12, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent or any L/C Issuer, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited. Section 10.13Replacement of Lenders . If any Lender requests compensation under Section 3.04, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender shall have not consented to any proposed amendment, modification, termination, waiver or consent requiring the consent of all Lenders or all affected Lenders as contemplated by Section 10.01 and the consent of the Required Lenders, the Required Revolving Credit Lenders or the Required Facility Lenders, as applicable, has been obtained, or if any Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06), all of its interests, rights (other than its existing rights 188
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to payments pursuant to Section 3.01 and Section 3.04) and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that: (a) the Borrower shall have paid to the Administrative Agent the assignment fee specified inSection 10.06(b); (b) such Lender shall have received payment of an amount equal to the outstanding principal ofits Loans, L/C Advances, if any, accrued interest thereon, accrued fees and all other amounts payable to ithereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (tothe extent of such outstanding principal, L/C Advances, if any, and accrued interest and fees) or the Borrower (inthe case of all other amounts); (c) in the case of any such assignment resulting from a claim for compensation under Section3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in suchcompensation or payments thereafter; (d) such assignment does not conflict with applicable Laws; and (e) in the case of any such assignment resulting from a Lender becoming a non-consentingLender, the applicable assignee shall have consented to the applicable amendment, modification, termination,waiver or consent. A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply. Each Lender and L/C Issuer hereby agrees and acknowledges that, with regard to any Assignment and Assumption necessary to effectuate any assignment of such Lender’s or L/C Issuer’s interests hereunder in the circumstances contemplated by this Section 10.13, consent to such Assignment and Assumption shall have been deemed to have been given if such Lender or L/C Issuer has not responded within one Business Day of a request for such consent. Section 10.14Governing Law; Jurisdiction; Etc. (a) Governing Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS ANDALL CLAIMS OR CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) THAT MAYBE BASED UPON, ARISE OUT OF OR RELATE IN ANY WAY HERETO OR THERETO OR THENEGOTIATION, EXECUTION OR PERFORMANCE HEREOF OR THEREOF OR THE TRANSACTIONSCONTEMPLATED HEREBY OR THEREBY, UNLESS OTHERWISE EXPRESSLY SET FORTH THEREIN,SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OFNEW YORK. (b) Submission to Jurisdiction. THE BORROWER IRREVOCABLY ANDUNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTIONOF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN AND OFTHE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK SITTING INTHE BOROUGH 189
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OF MANHATTAN, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION ORPROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOANDOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THEPARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECTOF ANY SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH NEW YORKSTATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERALCOURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTIONOR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BYSUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THISAGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THEADMINISTRATIVE AGENT, ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE TO BRINGANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTAGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. (c) Waiver of Venue. THE BORROWER IRREVOCABLY AND UNCONDITIONALLYWAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT ITMAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDINGARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANYCOURT REFERRED TO IN PARAGRAPH (b) OF THIS SECTION. EACH OF THE PARTIES HERETOHEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THEDEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION ORPROCEEDING IN ANY SUCH COURT. (d) Service of Process. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICEOF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THISAGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHERMANNER PERMITTED BY APPLICABLE LAW. Section 10.15Waiver of Jury Trial . EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. Section 10.16California Judicial Reference 190
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. If any action or proceeding is filed in a court of the State of California by or against any party hereto in connection with any of the transactions contemplated by this Agreement or any other Loan Document, (a) the court shall, and is hereby directed to, make a general reference pursuant to California Code of Civil Procedure Section 638 to a referee (who shall be a single active or retired judge) to hear and determine all of the issues in such action or proceeding (whether of fact or of law) and to report a statement of decision, provided that at the option of any party to such proceeding, any such issues pertaining to a “provisional remedy” as defined in California Code of Civil Procedure Section 1281.8 shall be heard and determined by the court, and (b) without limiting the generality of Section 10.04, the Borrower shall be solely responsible to pay all fees and expenses of any referee appointed in such action or proceeding. Section 10.17No Advisory or Fiduciary Responsibility . In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Arrangers, the Co-Managers and the Lenders are arm’s-length commercial transactions between the Borrower and its Affiliates, on the one hand, and the Administrative Agent, the Arrangers, the Co-Managers and the Lenders, on the other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative Agent and each of the Arrangers, the Co-Managers and the Lenders is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any other Person and (B) none of the Administrative Agent, the Arrangers, the Co-Managers or the Lenders has any obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent and each of the Arrangers, the Co-Managers and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and the Administrative Agent, the Arrangers, the Co-Managers and the Lenders do not have any obligation to disclose any of such interests to the Borrower or its Affiliates. To the fullest extent permitted by law, the Borrower hereby agrees not to assert any claims that it may have against the Administrative Agent and each of the Arrangers, the Co-Managers and the Lenders with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby. Section 10.18Electronic Execution of Assignments and Certain Other Documents . The words “execution,” “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including, without limitation, Assignment and Assumptions or in any amendment or other modification hereof (including waivers and consents)) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on 191
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electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Section 10.19USA PATRIOT Act . Each Lender and each L/C Issuer that is subject to the Act and the Administrative Agent (for itself and not on behalf of any Lender or L/C Issuer) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”) and the Beneficial Ownership Regulation, it is required to obtain, verify and record information that identifies the Borrower and each Guarantor, which information includes the name, tax identification number and address of the Borrower and each Guarantor and other information that will allow such Lender or L/C Issuer or the Administrative Agent, as applicable, to identify the Borrower and each Guarantor in accordance with the Act and the Beneficial Ownership Regulation. The Borrower shall, and shall cause each Guarantor to, promptly following a request by the Administrative Agent or any Lender or L/C Issuer, provide all documentation and other information that the Administrative Agent or L/C Issuer or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act and the Beneficial Ownership Regulation. Section 10.20Judgment Currency . If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or under any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of the Borrower in respect of any such sum due from it to the Administrative Agent or any Lender or L/C Issuer hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent or such Lender or L/C Issuer, as the case may be, of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent or such Lender or L/C Issuer, as the case may be, may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent or any Lender or L/C Issuer from the Borrower in the Agreement Currency, the Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or such Lender or L/C Issuer, as the case may be, against such loss. The provisions of this Section 10.20 shall survive the payment in full of the Obligations, the termination of the Commitments and the termination of this Agreement. 192
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Section 10.21Pari Passu Intercreditor Agreement . Notwithstanding anything to the contrary in this Agreement or in any other Loan Document: (i) the Liens granted to the Administrative Agent in favor of the Secured Parties pursuant to the Loan Documents and the exercise of any right related to any Collateral shall be subject, in each case, to the terms of the Pari Passu Intercreditor Agreement (if in effect), (ii) in the event of any conflict between the express terms and provisions of this Agreement or any other Loan Document, on the one hand, and of the Pari Passu Intercreditor Agreement, on the other hand, the terms and provisions of the Pari Passu Intercreditor Agreement shall control and (iii) each Lender and L/C Issuer (A) authorizes the Administrative Agent to execute the Pari Passu Intercreditor Agreement on behalf of such Lender and L/C Issuer, and (B) agrees to be bound by the terms of the Pari Passu Intercreditor Agreement and agrees that any action taken by the Administrative Agent under the Pari Passu Intercreditor Agreement shall be binding upon such Lender and L/C Issuer. Section 10.22Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to Write- Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by: (a) the application of any Write-Down and Conversion Powers by the applicable ResolutionAuthority to any such liabilities arising hereunder which may be payable to it by any Lender that is an AffectedFinancial Institution; and (b) the effects of any Bail-In Action on any such liability, including, if applicable: (i) a reduction in full or in part or cancellation of any such liability; (ii) a conversion of all, or a portion of, such liability into shares or other instruments ofownership in such Affected Financial Institution, its parent entity, or a bridge institution that may be issued to it orotherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu ofany rights with respect to any such liability under this Agreement or any other Loan Document; or (iii) the variation of the terms of such liability in connection with the exercise of theWrite-Down and Conversion Powers of the applicable Resolution Authority. Section 10.23Acknowledgement Regarding Any Supported QFCs . To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Swap Contracts or any other agreement or instrument that is a QFC (such support, “QFC Credit Support,” and each such QFC, a “Supported QFC”), the parties acknowledge 193
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and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States): (a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”)becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC andthe benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and suchQFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) fromsuch Covered Party will be effective to the same extent as the transfer would be effective under the U.S. SpecialResolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation andrights in property) were governed by the laws of the United States or a state of the United States. In the event aCovered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. SpecialResolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFCor any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to nogreater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if theSupported QFC and the Loan Documents were governed by the laws of the United States or a state of the UnitedStates. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties withrespect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a SupportedQFC or any QFC Credit Support; and (b) As used in this Section 10.23, the following terms have the following meanings: “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party. “Covered Entity” means any of the following: (a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D). 194
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[Signature Pages Omitted] 195
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Exhibit 21.1 SUBSIDIARIES OF BELLRING BRANDS, INC. Name Jurisdiction of Incorporation / Formation Active Nutrition International GmbH Germany BellRing Brands, LLC Delaware BellRing Intermediate Holdings, Inc. Delaware Dymatize Enterprises, LLC Delaware Premier Nutrition Canada, Inc. Ontario, Canada Premier Nutrition Company, LLC Delaware Supreme Protein, LLC Delaware TA/DEI-A Acquisition Corp. Delaware
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Exhibit 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We hereby consent to the incorporation by reference in the Registration Statements on Form S-3 (No. 333-266656) and Form S-8 (No. 333-238306, No. 333-237494, No. 333-234290, No. 333-282064) of BellRing Brands, Inc. of our report dated November 18, 2025 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in this Form 10-K. /s/ PricewaterhouseCoopers LLP St. Louis, Missouri November 18, 2025
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Exhibit 31.1 Certification pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 I, Darcy H. Davenport, certify that: 1. I have reviewed this annual report on Form 10-K of BellRing Brands, Inc.; 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 officers 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 registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an 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 officers 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. Date: November 18, 2025 By: /s/ Darcy H. Davenport Darcy H. Davenport President and Chief ExecutiveOfficer
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Exhibit 31.2 Certification pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 I, Paul A. Rode, certify that: 1. I have reviewed this annual report on Form 10-K of BellRing Brands, Inc.; 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 officers 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 registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an 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 officers 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. Date: November 18, 2025 By: /s/ Paul A. Rode Paul A. Rode Chief Financial Officer
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Exhibit 32.1 Certification Pursuant to U.S.C. Section 1350, as adopted pursuant to to Section 906 of the Sarbanes-Oxley Act of 2002 The undersigned, the President and Chief Executive Officer of BellRing Brands, Inc. (the “Company”), hereby certifies that, to her knowledge on the date hereof: (a) the annual report on Form 10-K for the period ended September 30, 2025, filed on the date hereof with the Securities and Exchange Commission (the "Report"), fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and (b) information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. Date: November 18, 2025 By: /s/ Darcy H. Davenport Darcy H. Davenport President and Chief ExecutiveOfficer A signed original of this written statement required by Section 906 has been provided to BellRing Brands, Inc. and will be retained by BellRing Brands, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.
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Certification Pursuant to U.S.C. Section 1350, as adopted pursuant to to Section 906 of the Sarbanes-Oxley Act of 2002 The undersigned, the Chief Financial Officer of BellRing Brands, Inc. (the “Company”), hereby certifies that, to his knowledge on the date hereof: (a) the annual report on Form 10-K for the period ended September 30, 2025, filed on the date hereof with the Securities and Exchange Commission (the "Report"), fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and (b) information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. Date: November 18, 2025 By: /s/ Paul A. Rode Paul A. Rode Chief Financial Officer A signed original of this written statement required by Section 906 has been provided to BellRing Brands, Inc. and will be retained by BellRing Brands, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.