SECOND AMENDMENT TO CREDIT AGREEMENT dated as of February 18, 2021, among VICTORY CAPITAL HOLDINGS, INC., as the Borrower, the other Loan Parties party hereto, the Participating Lenders and Fronting Bank party hereto, and BARCLAYS BANK PLC, as...

1.

Existing Credit Agreement Amendments.  Effective as of the Second Amendment Effective Date, the Existing Credit Agreement is hereby amended as follows:

(a)

Global Amendments to Certain Definitions.  Each reference to “Initial Term Loan”, “Initial Term Loans”, “Tranche B-2 Term Loan” and “Tranche B-2 Term Loans”, as applicable, contained in the definition of “Incremental Equivalent Debt” set forth in Section 1.01 of the Credit Agreement, the definition of “Maturity Date” set forth in Section 1.01 of the Credit Agreement, the definition of “Repricing Transaction” set forth in Section 1.01 of the Credit Agreement, Section 2.10, Section 2.11(a)(i), Section 2.11(b)(ix), Section 2.12(e), Section 2.22(a), Section 6.01(p)(vi), Section 6.01(q), Section 6.01(w) and Section 9.02(c) is replaced with a reference to “Tranche B-2 Term Loan” or “Tranche B-2 Term Loans”, as appropriate.

(b)

Section 1.01 of the Existing Credit Agreement is hereby amended by inserting the following new definitions in their correct alphabetical order:

(c)

Clause (a) of the definition of “Applicable Rate” set forth in Section 1.01 of the Existing Credit Agreement is hereby amended and restated in its entirety as follows:

(d)

the definitions of “Bail-In Action”, “Bail-In Legislation” and “Write-Down and Conversion Powers” are hereby amended and restated as follows:

(e)

Section 2.01 of the Existing Credit Agreement is hereby amended by adding a new clause (d) at the end thereof:

(f)

Section 2.12(e) of the Existing Credit Agreement is hereby amended by replacing references to “six months following the First Amendment Effective Date” therein with the text “six months following the Second Amendment Effective Date”.

(g)

Section 9.23 of the Existing Credit Agreement is hereby amended and restated as follows:

3.

Tranche B-2 Term Loans.  Subject to the terms and conditions set forth herein, each Tranche B-2 Term Loan Lender severally agrees to exchange Existing Term Loans for Tranche B-2 Term Loans and/or make Tranche B-2 Term Loans to the Borrower in a single borrowing in Dollars on the Second Amendment Effective Date.  The Tranche B-2 Term Loans shall be subject to the following terms and conditions:

(a)

Terms Generally.  Other than as set forth herein, for all purposes under the Credit Agreement and the other Loan Documents, the Tranche B-2 Term Loans shall have the same terms as the Tranche B-2 Term Loans under the Existing Credit Agreement and shall be treated for purposes of voluntary and mandatory prepayments (including for scheduled principal payments) and all other terms as Tranche B-2 Term Loans under the Existing Credit Agreement.

(b)

Proposed Borrowing.  Notwithstanding any other provisions of the Credit Agreement or any other Loan Document to the contrary, solely for purposes of the Tranche B-2 Loans to be borrowed by the Borrower on the Second Amendment Effective Date, this Amendment shall constitute a Borrowing Request by the Borrower to borrow the Tranche B-2 Term Loans from the Tranche B-2 Term Loan Lenders with an initial Interest Period under the Credit Agreement of three months but ending on April 5, 2021.

(c)

New Lenders.  Each New Lender (i) confirms that it has received a copy of the Existing Credit Agreement and the other Loan Documents and the exhibits and schedules thereto, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment and the Credit Agreement; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, the Lead Arrangers or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender, as the case may be.  Each New Lender acknowledges and agrees that it shall become a “Tranche B-2 Term Loan Lender” and a “Term Lender” under, and for all purposes of, the Credit Agreement and the other Loan Documents, and shall be subject to and bound by the terms thereof, and shall have all rights of a “Tranche B-2 Term Loan Lender” and a “Term Lender” thereunder.

(d)

Credit Agreement Governs.  Except as set forth in this Amendment, the Tranche B-2 Term Loans shall otherwise be subject to the provisions of the Credit Agreement and the other Loan Documents.

(e)

Exchange Mechanics.

(i)

On the Second Amendment Effective Date, upon the satisfaction or waiver (by the Lead Arrangers) of the conditions set forth in Section 4 hereof, the outstanding amount of Existing Term Loans of each Converting Lender exchanged pursuant to this Amendment shall be deemed to be exchanged for an equal outstanding amount of Tranche B-2 Term Loans under the Credit Agreement.  Such exchange shall be effected by book entry in such manner, and with such supporting documentation, as may be reasonably determined by the Lead Arrangers in their sole discretion in consultation with the Borrower.  It is acknowledged and agreed that each Converting Lender has agreed to accept as satisfaction in full of its right to receive payment on the outstanding amount of Existing Term Loans of such Converting Lender the conversion of its Existing Term Loans into Tranche B-2 Term Loans in accordance herewith, in lieu of the prepayment amount that would otherwise be payable by the Borrower pursuant to the Credit Agreement in respect of the outstanding amount of Existing Term Loans of such Converting Lender.

(ii)

(A) To the extent there exist (1) any Participating Cash Settlement Term Loans, the Fronting Bank shall be deemed to exchange on the Second Amendment Effective Date such Reallocated Term Loans on a cashless settlement basis for an equal aggregate principal amount of Tranche B-2 Term Loans under the Credit Agreement and (2) any Non-Participating Cash Settlement Term Loans, the Fronting Bank shall apply on the Second Amendment Effective Date proceeds of Tranche B-2 Term Loans in an aggregate amount equal to the aggregate amount of such Non-Participating Cash Settlement Term Loans to the repayment of such Non-Participating Cash Settlement Term Loans and (B) promptly following the Second Amendment Effective Date (but not later than 30 days following the Second Amendment Effective Date (or such later date as may be agreed to by the Fronting Bank in its sole discretion)), each New Lender, each Non-Converting Lender and each Existing Term Lender purchasing additional Tranche B-2 Term Loans shall purchase from the Fronting Bank the Tranche B-2 Term Loans exchanged for or applied to the repayment of such Reallocated Term Loans as directed by the Lead Arrangers in accordance with such Participating Lender’s Tranche B-2 Participation Notice and as allocated by the Lead Arrangers.  Purchases and sales of Reallocated Term Loans and Tranche B-2 Term Loans shall be without representations from the Fronting Bank other than as provided for in the relevant Assignment and Assumption.

4.

Effective Date Conditions.  This Amendment will become effective on the date (the “Second Amendment Effective Date”), on which each of the following conditions have been satisfied (or waived by the Lead Arrangers) in accordance with the terms therein:

(a)

the Administrative Agent (or its counsel) shall have received from each of the Borrower, the other Loan Parties party hereto, Lenders constituting Required Lenders and the Participating Lenders, either (i) a counterpart of this Amendment signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Amendment) that such party has signed a counterpart to this Amendment (which, in the case of the Participating Lenders, may be in the form of a Tranche B-2 Participation Notice);

(b)

the Administrative Agent shall have received fully executed and delivered Tranche B-2 Participation Notices from Participating Lenders and the Fronting Bank representing 100% of (x) the aggregate principal amount of the Existing Term Loans less (y) the aggregate amount of any Non-Participating Cash Settlement Term Loans;

(c)

the Administrative Agent shall have received a certificate of the Borrower dated as of the Second Amendment Effective Date signed by a Responsible Officer of the Borrower (i) (A) certifying and attaching the resolutions or similar consents adopted by the Borrower approving or consenting to this Amendment and the Tranche B-2 Term Loans, (B) certifying that the certificate or articles of organization or formation and by-laws or operating (or limited liability company) agreement of the Borrower either (x) have not been amended since the Closing Date or (y) are attached as an exhibit to such certificate, and (C) certifying as to the incumbency and specimen signature of each officer executing this Amendment and any related documents on behalf of the Borrower and (ii) certifying as to the matters set forth in clauses (e) and (f) below;

(d)

(i) the Administrative Agent shall have received all fees and other amounts previously agreed to in writing by the Lead Arrangers and the Borrower to be due on or prior to the Second Amendment Effective Date, including, to the extent invoiced at least three Business Days prior to the Second Amendment Effective Date (or such later date as is reasonably agreed by the Borrower), including legal fees and expenses and the fees and expenses of any other advisors in accordance with the terms of the Credit Agreement and (ii) all accrued interest and fees in respect of the Existing Term Loans outstanding immediately prior to effectiveness of this Amendment shall have been paid;

(e)

the representations and warranties in Section 5 of this Amendment shall be true and correct in all material respects as of the Second Amendment Effective Date; provided that, to the extent such representations and warranties specifically refer to an earlier date, they are true and correct in all material respects as of such earlier date; provided, further, that any such representations or warranties that are qualified by materiality, Material Adverse Effect, or similar construct, shall be true and correct in all respects;

(f)

no Default or Event of Default shall exist on the Second Amendment Effective Date before or after giving effect to the effectiveness of this Amendment and the incurrence of the Tranche B-2 Term Loans;

(g)

the Administrative Agent shall have shall have received a solvency certificate executed by the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Borrower; and

(h)

the Administrative Agent shall have received (on behalf of the New Lenders) all documentation at least three Business Days prior to the Second Amendment Effective Date and other information about the Loan Parties that shall have been reasonably requested in writing at least ten Business Days prior to the Second Amendment Effective Date and the Administrative Agent has reasonably determined is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation Title III of the USA Patriot Act.

5.

Representations and Warranties.  By its execution of this Amendment, each Loan Party hereby represents and warrants that:

(a)

such Loan Party has all requisite organizational power and authority to make, deliver and perform its obligations under this Amendment and has taken all necessary corporate or other action to authorize the execution, delivery and performance of this Amendment;

(b)

such Loan Party has duly executed and delivered this Amendment and this Amendment constitutes the legal, valid and binding obligation of such Loan Party enforceable in accordance with its terms, subject to the Legal Reservations;

(c)

no consent or approval of, registration or filing with, or any other action by, any Governmental Authority is required in connection with the execution, delivery, performance, validity or enforceability of this Amendment, except consents, authorizations, filings and notices the failure to obtain which would not reasonably be expected to have a Material Adverse Effect;

(d)

the execution, delivery and performance of this Amendment by the Loan Parties hereto will not (a) violate the Organizational Documents of the Loan Parties, (b) except as would not reasonably be expected to have a Material Adverse Effect, violate any Requirement of Law applicable to such Loan Party, and (c) violate or result in a default under any material Contractual Obligation to which such Loan Party is a party or is otherwise bound which violation, in the case of this clause (c), would reasonably be expected to result in a Material Adverse Effect;

(e)

both immediately before and after giving effect to the Second Amendment Effective Date and the incurrence and/or exchange of the Tranche B-2 Term Loans, (i) the representations and warranties of the Loan Parties set forth in the Credit Agreement and the other Loan Documents shall be true and correct in all material respects (or, in the case of any such representation and warranty that is qualified by “material”, “material adverse effect” or a similar term, in all respects), in each case, on and as of the Second Amendment Effective Date with the same effect as though such representations and warranties had been made on and as of the Second 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 (or, in the case of any such representation and warranty that is qualified by “material”, “material adverse effect” or a similar term, in all respects) as of such earlier date and (ii) no Default or Event of Default shall have occurred and be continuing on the Second Amendment Effective Date or would result from the consummation of this Amendment and the transactions contemplated hereby.

6.

Use of Proceeds.  The proceeds of the Tranche B-2 Term Loans shall be applied in exchange for or to prepay in full the aggregate principal amount of the Existing Term Loans outstanding on the Second Amendment Effective Date in accordance with the terms hereof.

7.

Reaffirmation of the Loan Parties; Reference to and Effect on the Credit Agreement and the other Loan Documents.

(a)

Each Loan Party hereby consents to the amendment of the Credit Agreement effected hereby and confirms and agrees that, notwithstanding the effectiveness of this Amendment, each Loan Document to which such Loan Party is a party is, and the obligations of such Loan Party contained in the Credit Agreement, this Amendment or in any other Loan Document to which it is a party are, and shall continue to be, in full force and effect and are hereby ratified and confirmed in all respects, in each case as amended by this Amendment.  For greater certainty and without limiting the foregoing, each Loan Party hereby confirms that the existing security interests and/or guarantees granted by such Loan Party in favor of the Secured Parties pursuant to the Loan Documents in the Collateral described therein shall continue to secure the obligations of the Loan Parties under the Credit Agreement and the other Loan Documents as and to the extent provided in the Loan Documents.  Except as specifically amended by this Amendment, the Credit Agreement and the other Loan Documents shall remain in full force.

(b)

Except to the extent expressly set forth in this Amendment, the execution, delivery and performance of this Amendment shall not constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of any Agent or Lender under, the Credit Agreement or any of the other Loan Documents.

(c)

On and after the Second Amendment Effective Date, each reference in the Credit Agreement to “this Amendment”, “hereunder”, “hereof”, “herein” or words of like import referring to the Credit Agreement, 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 the Credit Agreement as amended by this Amendment.

8.

Prepayment Notice. The Participating Lenders and the Fronting Bank party hereto, which constitute the Required Lenders, and the Administrative Agent hereby waive the requirement under Section 2.11(a) of the Credit Agreement to provide notice to the Administrative Agent not less than three Business Days prior to the prepayment of the Existing Term Loans to be made hereunder.  It is understood and agreed that notwithstanding any provisions of the Credit Agreement or any other Loan Document to the contrary this Amendment shall serve as the notice referred to in Section 2.11(a) of the Credit Agreement.

9.

Notice of Refinancing.  Pursuant to this Amendment, the Borrower hereby requests a Borrowing of Tranche B-2 Term Loans in an aggregate principal amount of $755,738,911.65, with such Borrowing to be made on the Second Amendment Effective Date and to have an Interest Period under the Credit Agreement of three months but ending on April 5, 2021.

10.

Notice.  For purposes of the Credit Agreement, the initial notice address of each New Lender shall be as separately identified to the Administrative Agent.

11.

Tax Forms.  For each New Lender, delivered herewith to the Administrative Agent are such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such New Lender may be required to deliver to the Administrative Agent pursuant to Section 2.17(f) of the Credit Agreement.

12.

Recordation of the New Loans.  Upon execution and delivery hereof, the Administrative Agent will record the Tranche B-2 Term Loans made by each Participating Lender in the Register.

13.

Amendment, Modification and Waiver.  This Amendment may not be amended, modified or waived except as permitted by Section 9.02 of the Credit Agreement.

14.

Integration.  This Amendment, the other Loan Documents and any separate letter agreements with respect to fees payable to the Lead Arrangers and/or the Administrative Agent or the syndication of the Tranche B-2 Term Loans and commitments related thereto constitute the entire agreement among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  This Amendment shall not constitute a novation of any amount owing under the Credit Agreement and all amounts owing in respect of principal, interest, fees and other amounts pursuant to the Credit Agreement and the other Loan Documents shall, to the extent not paid or exchanged on or prior to the Second Amendment Effective Date, continue to be owing under the Credit Agreement or such other Loan Documents until paid in accordance therewith.

15.

GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS.  THIS AMENDMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AMENDMENT, WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.  SECTIONS 9.10(b) THROUGH (d) OF THE CREDIT AGREEMENT ARE HEREBY INCORPORATED BY REFERENCE INTO THIS AMENDMENT AS IF SUCH PROVISION WERE SET FORTH IN FULL HEREIN MUTATIS MUTANDIS AND SHALL APPLY HERETO.

16.

Severability.  Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

17.

Counterparts.  This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  Delivery of an executed counterpart of a signature page to this Amendment by facsimile or by email as a “.pdf” or “.tif” attachment shall be effective as delivery of a manually executed counterpart of this Amendment.

18.

WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.  EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY 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 AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

19.

Loan Document.  On and after the Second Amendment Effective Date, this Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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