EXHIBIT 4.7
FORM OF
, dated as of December 21, 2001 (the "") by and among Affiliated Managers Group, Inc., a company organized
and existing under the laws of the State of Delaware ("the "Company"), First
Union National Bank, a national banking corporation, not individually but solely
as Purchase Contract Agent and as attorney-in-fact of the holders of Purchase
Contracts (each as defined in the Purchase Contract Agreement (as defined
herein)), and [Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated] (the "Remarketing Agent").
WITNESSETH:
WHEREAS, the Company has issued its FELINE PRIDES (the "FELINE PRIDES")
in an aggregate Stated Amount of $200,000,000 under the Purchase Contract
Agreement, dated as of December 21, 2001, by and between the Purchase Contract
Agent and the Company (the "Purchase Contract Agreement"); and
WHEREAS, the Company will issue concurrently in connection with the
issuance of the FELINE PRIDES 6% Senior Notes of the Company due November 17,
2004 (the "Notes") in an aggregate principal amount of $200,000,000; and
WHEREAS, the FELINE PRIDES will initially consist of 8,000,000 units
referred to as "Income PRIDES"; and
WHEREAS, the Notes forming a part of the Income Prides will be pledged
pursuant to the Pledge Agreement (the "Pledge Agreement"), dated as of December
21, 2001, by and among the Company, First Union National Bank, as collateral
agent (the "Collateral Agent"), and the Purchase Contract Agent, to secure an
Income PRIDES holder's obligations under the related Purchase Contract on the
Purchase Contract Settlement Date; and
WHEREAS, the Notes of the Noteholders electing to have their Notes
remarketed and of the Noteholders will be remarketed by the Remarketing Agent on
the third Business Day immediately preceding August 17, 2004 (the "Initial
Remarketing Date"); and
WHEREAS, in the event of a Failed Initial Remarketing, the Notes of the
Noteholders electing to have their Notes remarketed and of the Income PRIDES
holders who have elected not to settle the Purchase Contracts related to their
Income PRIDES by Cash Settlement and who have not settled their Purchase
Contracts early upon the occurrence of a corporate transaction will be
remarketed by the Remarketing Agent on the third Business Day immediately
preceding the Purchase Contract Settlement Date; and
WHEREAS, in the event of a Successful Initial Remarketing, the
applicable interest rate on the Notes will be reset on the Initial Remarketing
Date, to the Reset Rate to be determined by the Reset Agent as the rate that
such Notes should bear in order for the Applicable Principal Amount of the Notes
to have an approximate aggregate market value of 100.5% of the Treasury
Portfolio Purchase Price on the Initial Remarketing Date, provided that in the
determination of such Reset Rate, the Company shall, if applicable, limit the
Reset Rate to the maximum rate permitted by applicable law; and
WHEREAS, in the event of a Failed Initial Remarketing, the applicable
interest rate on the Notes that remain outstanding on and after the Purchase
Contract Settlement Date will be reset on the third Business Day immediately
preceding the Purchase Contract Settlement Date, to the Reset Rate to be
determined by the Reset Agent as the rate that such Notes should bear in order
to have an approximate market value of 100.5% of the aggregate principal amount
of the Notes on the third Business Day immediately preceding the Purchase
Contract Settlement Date, provided that in the determination of such Reset Rate,
the Company shall, if applicable, limit the Reset Rate to the maximum rate
permitted by applicable law; and
WHEREAS, the Company has requested [Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated] ("[Xxxxxxx Xxxxx]") to act as the Reset
Agent and as the Remarketing Agent, and as such to perform the services
described herein; and
WHEREAS, [Xxxxxxx Xxxxx] is willing to act as Reset Agent and
Remarketing Agent and as such to perform such duties on the terms and conditions
expressly set forth herein;
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions herein set forth, the parties hereto agree as
follows:
SECTION 1. DEFINITIONS. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Purchase Contract
Agreement or, if not therein defined, the Pledge Agreement.
SECTION 2. APPOINTMENT AND OBLIGATIONS OF REMARKETING AGENT. The
Company hereby appoints [Xxxxxxx Xxxxx] and [Xxxxxxx Xxxxx] hereby accepts such
appointment, (i) as the Reset Agent to determine in consultation with the
Company, in the manner provided for herein and in the Indenture (as in effect on
the date of this ) with respect to the Notes, (1) the Reset
Rate that, in the opinion of the Reset Agent, will, when applied to the Notes,
enable the Applicable Principal Amount of the Notes to have an approximate
aggregate market value of 100.5% of the Treasury Portfolio Purchase Price as of
the Initial Remarketing Date, and (2) in the event of a Failed Initial
Remarketing, the Reset Rate that, in the opinion of the Reset Agent, will, when
applied to the Notes, enable a Note to have an approximate market value of
100.5% of its principal amount as of the third Business Day preceding the
Purchase Contract Settlement Date, provided, in each case, that the Company, by
notice to the Reset Agent prior to the tenth Business Day preceding August 17,
2004, in the case of the Initial Remarketing (as defined below), or the Purchase
Contract Settlement Date, in the case of the Secondary Remarketing (as defined
below), shall, if applicable, limit the Reset Rate so that it does not exceed
the maximum rate permitted by applicable law) and (ii) as the exclusive
Remarketing Agent (subject to the right of Xxxxxxx Xxxxx to appoint additional
remarketing agents hereunder as described below) to (1) remarket the Notes of
the Note holders electing to have their Notes remarketed and of the Income
PRIDES holders on the Initial Remarketing Date, for settlement on August 17,
2004 and (2) in the case of a 2 Failed Initial Remarketing, remarket the Notes
of the Note holders electing to have their Notes remarketed or of the Income
PRIDES holders who have not early settled the related Purchase Contracts and
have failed to notify the Purchase Contract Agent, on or prior to the fifth
Business Day immediately preceding the Purchase Contract Settlement Date, of
their intention to settle the related Purchase Contracts through Cash
Settlement. In connection with the remarketing contemplated hereby, the
Remarketing Agent will enter into a Supplemental
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(the "Supplemental ") with the
Company and the Purchase Contract Agent, which shall either be (i) substantially
in the form attached hereto as Exhibit A (with such changes as the Company and
the Remarketing Agent may agree upon, it being understood that changes may be
necessary in the representations, warranties, covenants and other provisions of
the Supplemental due to changes in law or facts and
circumstances or in the event that Xxxxxxx Xxxxx is not the sole remarketing
agent, and with such further changes therein as the Remarketing Agent may
reasonably request, or (ii) in such other form as the Remarketing Agent may
reasonably request, subject to the approval of the Company (such approval not to
be unreasonably withheld). Anything herein to the contrary notwithstanding,
Xxxxxxx Xxxxx shall not be obligated to act as Remarketing Agent or Reset Agent
hereunder unless the Supplemental is in form and substance
reasonably satisfactory to Xxxxxxx Xxxxx. The Company agrees that Xxxxxxx Xxxxx
shall have the right, on 15 Business Days notice to the Company, to appoint one
or more additional remarketing agents so long as any such additional remarketing
agents shall be reasonably acceptable to the Company. Upon any such appointment,
the parties shall enter into an appropriate amendment to this Agreement to
reflect the addition of any such remarketing agent. (b) Pursuant to the
Supplemental , the Remarketing Agent, either as sole
remarketing agent or as representative of a group of remarketing agents
appointed as aforesaid, will agree, subject to the terms and conditions set
forth herein and therein, to use its reasonable efforts to (i) remarket, on the
Initial Remarketing Date, the Notes that the Trustee (as such term is defined in
the Indenture) shall have notified the Remarketing Agent have been tendered for,
or otherwise are to be included in, the Initial Remarketing, at a price per Note
such that the aggregate price for the Applicable Principal Amount of the Notes
is approximately 100.5% of the Treasury Portfolio Purchase Price and (ii) in the
event of a Failed Initial Remarketing, remarket, on the third Business Day
immediately preceding the Purchase Contract Settlement Date, the Notes that the
Trustee shall have notified the Remarketing Agent have been tendered for, or
otherwise are to be included in, the Secondary Remarketing, at a price of
approximately 100.5% of the aggregate principal amount of such Notes.
Notwithstanding the preceding sentence, the Remarketing Agent shall not remarket
any Notes for a price less than the price necessary for the Applicable Principal
Amount of the Notes to have an aggregate price equal to 100% of the Treasury
Portfolio Purchase Price (the "Minimum Initial Remarketing Price"), in the case
of the Initial Remarketing, or the aggregate principal amount of such Notes, in
the case of the Secondary Remarketing. After deducting the fee specified in
Section 3 below, the proceeds of such Initial Remarketing or Secondary
Remarketing, as the case may be, shall be paid to the Collateral Agent in
accordance with Section 4.6 or 6.3 of the Pledge Agreement and Section 5.3 or
5.4 of the Purchase Contract Agreement (each of which Sections are incorporated
herein by reference). The right of each holder of Notes or Income PRIDES to have
Notes tendered for the Initial Remarketing or the Secondary Remarketing, as the
case may be, shall be limited to the extent that (i) the Remarketing Agent
conducts an Initial Remarketing and, in the event of a Failed Initial
Remarketing, a Secondary Remarketing pursuant to the terms of this Agreement,
(ii) Notes tendered have not been called for redemption, (iii) the Remarketing
Agent is able to find a purchaser or purchasers for tendered Notes at a price of
not less than the Minimum Initial Remarketing Price, in the case of the Initial
Remarketing, and 100% of the principal amount thereof, in the case of the
Secondary Remarketing and (iv) such purchaser or purchasers deliver the purchase
price therefor to the Remarketing Agent as and when required. (c) It is
understood and agreed that neither the Remarketing Agent nor the Reset Agent
shall have any obligation
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whatsoever to purchase any Notes, whether in the Initial Remarketing, Secondary
Remarketing or otherwise, and shall in no way be obligated to provide funds to
make payment upon tender of Notes for remarketing or to otherwise expend or risk
their own funds or incur or be exposed to financial liability in the performance
of their respective duties under this Agreement or the Supplemental , and, without limitation of the foregoing, the Remarketing Agent shall
not be deemed an underwriter of the remarketed Notes. The Company shall not be
obligated in any case to provide funds to make payment upon tender of Notes for
remarketing.
SECTION 3. FEES. In the event of a Successful Initial Remarketing, the
Remarketing Agent shall retain as a remarketing fee (the "Remarketing Fee") an
amount not exceeding 25 basis points (0.25%) of the Minimum Initial Remarketing
Price from any amount received in connection with such Initial Remarketing in
excess of the Minimum Initial Remarketing Price. In the event of a Successful
Secondary Remarketing, the Remarketing Agent shall retain as the Remarketing Fee
an amount not exceeding 25 basis points (0.25%), of the principal amount of the
remarketed Notes from any amount received in connection with such Secondary
Remarketing in excess of the aggregate principal amount of such remarketed
Notes. In addition, the Reset Agent shall, in either case, receive from the
Company a reasonable and customary fee (the "Reset Agent Fee"); provided,
however, that if the Remarketing Agent shall also act as the Reset Agent, then
the Reset Agent shall not be entitled to receive any such Reset Agent Fee.
Payment of such Reset Agent Fee shall be made by the Company on the Initial
Remarketing Date, in the case of a Successful Initial Remarketing, or on the
third Business Day immediately preceding the Purchase Contract Settlement Date,
in the case of a Successful Secondary Remarketing, in immediately available
funds or, upon the instructions of the Reset Agent, by certified or official
bank check or checks or by wire transfer.
SECTION 4. REPLACEMENT AND RESIGNATION OF REMARKETING AGENT. (a) The
Company may in its absolute discretion replace Xxxxxxx Xxxxx as the Remarketing
Agent and as the Reset Agent hereunder by giving notice prior to 3:00 p.m., New
York City time (i) on the eleventh Business Day immediately prior to August 17,
2004, or (ii) in the event of a Failed Initial Remarketing, prior to 3:00 p.m.,
New York City time on the eleventh Business Day immediately prior to the
Purchase Contract Settlement Date, provided, in either case, that the Company
must replace Xxxxxxx Xxxxx both as Remarketing Agent and as Reset Agent unless
Xxxxxxx Xxxxx shall otherwise agree. Any such replacement shall become effective
upon the Company's appointment of a successor to perform the services that would
otherwise be performed hereunder by the Remarketing Agent and the Reset Agent.
Upon providing such notice, the Company shall use all reasonable efforts to
appoint such a successor and to enter into a remarketing agreement with such
successor as soon as reasonably practicable.
(b) Xxxxxxx Xxxxx may resign at any time and be discharged from its
duties and obligations hereunder as the Remarketing Agent and/or as the Reset
Agent by giving notice prior to 3:00 p.m., New York City time (i) on the
eleventh Business Day immediately prior to August 17, 2004, or (ii) in the event
of a Failed Initial Remarketing, on the eleventh Business Day immediately prior
to the Purchase Contract Settlement Date. Any such resignation shall become
effective upon the Company's appointment of a successor to perform the services
that would otherwise be performed hereunder by the Remarketing Agent and/or the
Reset Agent. Upon receiving notice from the Remarketing Agent and/or the Reset
Agent that it wishes to resign
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hereunder, the Company shall appoint such a successor and enter into a
remarketing agreement with it as soon as reasonably practicable.
SECTION 5. DEALING IN THE SECURITIES. Each of the Remarketing Agent and
the Reset Agent, when acting hereunder or, in the case of the Remarketing Agent,
under the Supplemental Remarketing Agreement, or when acting in its individual
or any other capacity, may, to the extent permitted by law, buy, sell, hold or
deal in any of the Notes, Growth PRIDES, Income PRIDES or any other securities
of the Company. With respect to any Notes, Growth PRIDES Units, Income PRIDES or
any other securities of the Company owned by it, each of the Remarketing Agent
and the Reset Agent may exercise any vote or join in any action with like effect
as if it did not act in any capacity hereunder. Each of the Remarketing Agent
and the Reset Agent, in its individual capacity, either as principal or agent,
may also engage in or have an interest in any financial or other transaction
with the Company as freely as if it did not act in any capacity hereunder.
SECTION 6. REGISTRATION STATEMENT AND PROSPECTUS. (a) In connection
with the Initial Remarketing, if and to the extent required in the view of
counsel (which need not be an opinion) for either the Remarketing Agent or the
Company by applicable law, regulations or interpretations in effect at the time
of such Initial Remarketing, the Company (i) shall use its reasonable efforts to
have a registration statement relating to the Notes effective under the
Securities Act of 1933 prior to the third Business Day immediately preceding May
17, 2004, (ii) if requested by the Remarketing Agent shall furnish a current
preliminary prospectus and, if applicable, a current preliminary prospectus
supplement to be used by the Remarketing Agent in the Initial Remarketing not
later than seven Business Days prior to May 17, 2004 (or such earlier date as
the Remarketing Agent may reasonably request) and in such quantities as the
Remarketing Agent may reasonably request, and (iii) shall furnish a current
final prospectus and, if applicable, a final prospectus supplement to be used by
the Remarketing Agent in the Initial Remarketing not later than the third
Business Day immediately preceding May 17, 2004 in such quantities as the
Remarketing Agent may reasonably request, and shall pay all expenses relating
thereto.
(b) In the event of a Failed Initial Remarketing and in connection with
the Secondary Remarketing, if and to the extent required in the view of counsel
(which need not be an opinion) for either the Remarketing Agent or the Company
by applicable law, regulations or interpretations in effect at the time of such
Secondary Remarketing, the Company (i) shall use its reasonable efforts to have
a registration statement relating to the Notes effective under the Securities
Act of 1933 prior to the third Business Day immediately preceding the Purchase
Contract Settlement Date, (ii) if requested by the Remarketing Agent, shall
furnish a current 5 preliminary prospectus and, if applicable, a current
preliminary prospectus supplement to be used by the Remarketing Agent in the
Secondary Remarketing not later than seven Business Days prior to the Purchase
Contract Settlement Date (or such earlier date as the Remarketing Agent may
reasonably request) and in such quantities as the Remarketing Agent may
reasonably request, and (iii) shall furnish a current final prospectus and, if
applicable, a final prospectus supplement to be used by the Remarketing Agent in
the Secondary Remarketing not later than the third Business Day immediately
preceding the Purchase Contract Settlement Date in such
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quantities as the Remarketing Agent may reasonably request, and shall pay all
expenses relating thereto.
(c) If in connection with the Initial Remarketing or, in the event of a
Failed Initial Remarketing, the Secondary Remarketing it shall not be possible,
in the view of counsel (which need not be an opinion) for either the Remarketing
Agent or the Company, under applicable law, regulations or interpretations in
effect at the time of such Initial Remarketing or such Secondary Remarketing to
register the offer and sale by the Company of the Notes under the Securities Act
of 1933 as otherwise contemplated by this Section 6, the Company (i) shall use
its reasonable efforts to take, or cause to be taken, all action and to do, or
cause to be done, all things necessary, proper and advisable to permit and
effectuate the offer and sale of the Notes in connection with the Initial
Remarketing or the Secondary Remarketing, as the case may be, without
registration under the Securities Act of 1933 pursuant to an exemption
therefrom, if available, including the exemption afforded by Rule 144A under the
rules and regulations promulgated under the Securities Act of 1933 by the
Securities and Exchange Commission, (ii) if requested by the Remarketing Agent
shall furnish a current preliminary remarketing memorandum to be used by the
Remarketing Agent in the Initial Remarketing or the Secondary Remarketing, as
the case may be, not later than seven Business Days prior to May 17, 2004, in
the case of the Initial Remarketing, or the Purchase Contract Settlement Date,
in the case of the Secondary Remarketing (or in either case such earlier date as
the Remarketing Agent may reasonably request) and in such quantities as the
Remarketing Agent may reasonably request and (iii) shall furnish a current final
remarketing memorandum to be used by the Remarketing Agent in the Initial
Remarketing or the Secondary Remarketing, as the case may be, not later than the
third Business Day immediately preceding May 17, 2004, in the case of the
Initial Remarketing, or the Purchase Contract Settlement Date, in the case of
the Secondary Remarketing, in such quantities as the Remarketing Agent may
reasonably request, and shall pay all expenses relating thereto. (d) The Company
shall also take all such actions as may (upon advice of counsel to the Company
or the Remarketing Agent) be necessary or desirable under state securities or
blue sky laws in connection with the Initial Remarketing and the Secondary
Remarketing.
SECTION 7. CONDITIONS TO THE REMARKETING AGENT'S OBLIGATIONS. (a) The
obligations of the Remarketing Agent and the Reset Agent under this Agreement
and, in the case of the Remarketing Agent, the Supplemental Remarketing
Agreement shall be subject to the terms and conditions of this Agreement and the
Supplemental Remarketing Agreement, including, without limitation, the following
conditions: (i) the Notes tendered for, or otherwise to be included in the
Initial Remarketing or Secondary Remarketing, as the case may be, have not been
called for redemption, (ii) the Remarketing Agent is able to find a purchaser or
purchasers 6 for tendered Notes (1) in the case of the Initial Remarketing, at a
price not less than Minimum Initial Remarketing Price, and (2) in the case of
the Secondary Remarketing, at a price not less than 100% of the principal amount
thereof, (iii) the Purchase Contract Agent, the Collateral Agent, the Custodial
Agent, the Company and the Trustee shall have performed their respective
obligations in connection with the Initial Remarketing and, in the event of a
Failed Initial Remarketing, in connection with the Secondary Remarketing, in
each case pursuant to the Purchase Contract Agreement, the Pledge Agreement, the
Indenture, this Agreement and the Supplemental Remarketing Agreement (including,
without limitation, giving the Remarketing Agent notice of the Treasury
Portfolio Purchase Price no later than 10:00 a.m., New York City time, on the
fourth Business Day prior to May 17, 2004, in the case of the Initial
Remarketing,
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and giving the Remarketing Agent notice of the aggregate principal amount, as
the case may be, of Notes to be remarketed, no later than 10:00 a.m., New York
City time, on the fourth Business Day prior to the Purchase Contract Settlement
Date, in the case of the Secondary Remarketing, and, in each case, concurrently
delivering the Notes to be remarketed to the Remarketing Agent), (iv) no Event
of Default (as defined in the Indenture) shall have occurred and be continuing,
(v) the accuracy of the representations and warranties of the Company included
and incorporated by reference in this Agreement and the Supplemental Remarketing
Agreement or in certificates of any officer of the Company or any of its
subsidiaries delivered pursuant to the provisions included or incorporated by
reference in this Agreement or the Supplemental Remarketing Agreement, (vi) the
performance by the Company of its covenants and other obligations included and
incorporated by reference in this Agreement and the Supplemental Remarketing
Agreement, and (vii) the satisfaction of the other conditions set forth and
incorporated by reference in this Agreement and the Supplemental Remarketing
Agreement.
(b) If at any time during the term of this Agreement, any Indenture
Event of Default or event that with the passage of time or the giving of notice
or both would become an Indenture Event of Default has occurred and is
continuing under the Indenture, then the obligations and duties of the
Remarketing Agent and the Reset Agent under this Agreement and the Supplemental
Remarketing Agreement shall be suspended until such default or event has been
cured. The Company will promptly give the Remarketing Agent notice of all such
defaults and events of which the Company is aware.
SECTION 8. TERMINATION OF REMARKETING AGREEMENT. This Agreement shall
terminate as to the Remarketing Agent and/or the Reset Agent on the effective
date of its replacement pursuant to Section 4(a) hereof or pursuant to Section
4(b) hereof.
SECTION 9. REMARKETING AGENT'S PERFORMANCE; DUTY OF CARE. The duties
and obligations of the Remarketing Agent hereunder shall be determined solely by
the express provisions of this Agreement and the Remarketing Underwriting
Agreement.
SECTION 10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 11. TERM OF AGREEMENT. Unless otherwise terminated in
accordance with the provisions hereof and except as otherwise provided herein,
this Agreement shall remain in full force and effect from the date hereof until
the first day thereafter on which no Notes are outstanding, or, if earlier, the
Business Day immediately following August 17, 2004, in the case of a Successful
Initial Remarketing, or the Business Day immediately following the Purchase
Contract Settlement Date, in the case of a Successful Secondary Remarketing.
SECTION 12. SUCCESSORS AND ASSIGNS. The rights and obligations of the
Company hereunder may not be assigned or delegated to any other person without
the prior written consent of [Xxxxxxx Xxxxx] as the Remarketing Agent and/or as
the Reset Agent. The rights and obligations of Xxxxxxx Xxxxx as the Remarketing
Agent and/or as the Reset Agent hereunder may not be assigned or delegated to
any other person without the prior written consent of the Company. This
Agreement shall inure to the benefit of and be binding upon the Company and
7
Xxxxxxx Xxxxx as the Remarketing Agent and/or as the Reset Agent and their
respective successors and assigns. The terms "successors" and "assigns" shall
not include any purchaser of Securities merely because of such purchase.
SECTION 13. HEADINGS. Section headings have been inserted in this
Agreement as a matter of convenience of reference only, and it is agreed that
such section headings are not a part of this Agreement and will not be used in
the interpretation of any provision of this Agreement.
SECTION 14. SEVERABILITY. If any provision of this Agreement shall be
held or deemed to be or shall, in fact, be invalid, inoperative or unenforceable
as applied in any particular case in any or all jurisdictions because it
conflicts with any provisions of any constitution, statute, rule or public
policy or for any other reason, such circumstances shall not have the effect of
rendering the provision in question invalid, inoperative or unenforceable in any
other case, circumstances or jurisdiction, or of rendering any other provision
or provisions of this Agreement invalid, inoperative or unenforceable to any
extent whatsoever.
SECTION 15. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
SECTION 16. AMENDMENTS. This Agreement may be amended by any instrument
in writing signed by the parties hereto.
SECTION 17. NOTICES. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication, including telephone, telegraph or telecopy, and confirmed in
writing. All written notices and confirmations of notices by telecommunication
shall be deemed to have been validly given or made when delivered or mailed,
registered or certified mail, return receipt requested and postage prepaid. All
such notices, requests, consents or other communications shall be addressed as
follows: if to the Company, Affiliated Managers Group, Inc., 000 Xxxx Xxxxxx,
Xxxxxx Xxxxxxxx, XX 00000, Attention: Xxxxxxx X. Crate, with a copy to Xxxxxxx
Procter LLP, Exchange Place, Boston, MA 02109-2881, Attention: Xxxxxx
Xxxxxxxxxx; if to the Remarketing Agent or Reset Agent (if Xxxxxxx Xxxxx & Co.
is the Remarketing Agent or the Reset Agent), to Xxxxxxx Xxxxx & Co., World
Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Investment
Banking, with a copy to Sidley Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx
Xxxx, XX 00000, Attention: X. Xxxxxx Wiltshire; and if to the Purchase Contract
Agent, to First Union National Bank, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Trust - NY 4040, or to such other address as any of
the above shall specify to the other in writing.
SECTION 18. CONSENT TO JURISDICTION; MISCELLANEOUS. Each of the parties
hereto hereby expressly and irrevocably submits to the non-exclusive
jurisdiction of any competent court in the place of its domicile and any United
States Federal or New York State court sitting in the Borough of Manhattan in
The City of New York in any action, suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby to the extent
that such court has subject matter jurisdiction over the controversy, and
expressly and irrevocably waives, to the extent permitted under applicable law,
any immunity from the jurisdiction thereof and any
8
claim or defense in such action, suit or proceeding based on a claim of improper
venue, FORUM NON CONVENIENS or any similar basis to which it might otherwise be
entitled in any such action, suit or proceeding. The Company irrevocably
appoints --, [Address] as its authorized agent in the Borough of Manhattan
in The City of New York upon which process may be served in any such action,
suit or proceeding, and agrees that service of process upon such agent, and
written notice of said service to the Company by the person serving the same to
the address provided in Section 18, shall be deemed in every respect effective
service of process upon the Company, in any such action, suit or proceeding. The
Company further agrees to take any and all action as may be necessary to
maintain such designation and appointment of such agent in full force and effect
for a period of seven years from the date of this Agreement.
SECTION 19. WAIVER OF IMMUNITIES. To the extent that the Company or any
of its properties, assets or revenues may have or may hereafter become entitled
to, or have attributed to them, any right of immunity, on the grounds of
sovereignty, from any legal action, suit or proceeding, from set-off or
counterclaim, from the jurisdiction of any court, from service of process, from
attachment upon or prior to judgment, or from attachment in aid of execution of
judgment, or from execution of judgment, other legal process or proceeding for
the giving of any relief or for the enforcement of any judgment, in any
jurisdiction in which proceedings may at any time be commenced, with respect to
their obligations, liabilities or any other matter under or arising out of or in
connection with this Agreement or any additional agreement, the Company hereby
irrevocably and unconditionally, to the extent permitted by applicable law,
waives and agrees not to plead or claim any such immunity and consents to such
relief and enforcement.
SECTION 20. [JUDGEMENT CURRENCY. The Company agrees to indemnify each
of the Remarketing Agent and the Purchase Contract Agent against any loss
incurred by such party as a result of any judgment or order being given or made
for any amount due hereunder and such judgment or order being expressed and paid
in a currency (the "Judgment Currency") other than United States dollars and as
a result of any variation as between (i) the rate of exchange at which the
United States dollar amount is converted into the Judgment Currency for the
purpose of such judgment or order, and (ii) the rate of exchange at which the
such party is able to purchase United States dollars with the amount of the
Judgment Currency actually received by such party. The foregoing indemnity shall
constitute a separate and independent obligation of the Company and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" shall include any premiums and costs of
exchange payable in connection with the purchase of, or conversion into, the
relevant currency.]
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IN WITNESS WHEREOF, each of the Company, the Purchase Contract Agent
and the Remarketing Agent has caused this Agreement to be executed in its name
and on its behalf by one of its duly authorized officers as of the date first
above written.
AFFILIATED MANAGERS GROUP, INC.
By: _______________________________
Name:
Title:
CONFIRMED AND ACCEPTED:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: ________________________________
Name:
Title:
FIRST UNION NATIONAL BANK
not individually but solely as Purchase Contract
Agent and as attorney-in-fact for the holders of
the Purchase Contracts
By: ________________________________
Name:
Title:
10
Exhibit A to
Remarketing Agreement
FORM OF SUPPLEMENTAL REMARKETING AGREEMENT
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
(the "Remarketing Underwriter") hereby agrees to purchase the Notes (the
"Securities"), that have been tendered by the holders of the Notes or the Income
PRIDES for sale on November 17, 2004 .
1. DEFINITIONS. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the purchase contract
agreement (the "Purchase Contract Agreement"), the pledge agreement (the "Pledge
Agreement"), the underwriting agreement (the "Underwriting Agreement"), each as
identified in Schedule I hereto.
2. REGISTRATION STATEMENT AND PROSPECTUS. If required (in the opinion
of counsel to either the Remarketing Underwriter or the Company) by applicable
law, the Company has filed with the Securities and Exchange Commission, and
there has become effective, a registration statement on Form S-3 (No.
333-74558), including a prospectus, relating to the Securities. Such
registration statement, as amended to the date of this Agreement, is hereinafter
referred to as the "Registration Statement," the prospectus included in the
Registration Statement is hereinafter referred to as the "Basic Prospectus" and
the Basic Prospectus, as amended or supplemented to the date of this Agreement
to relate to the Securities and to the remarketing of the Securities, is
hereinafter referred to as the "Final Prospectus" (including in each case all
documents incorporated by reference).
3. PROVISIONS INCORPORATED BY REFERENCE. (a) Subject to Section 3(b),
the provisions of the Underwriting Agreement shall be incorporated, as
applicable, into this Agreement and made applicable to the obligations of the
Remarketing Underwriter, except as explicitly amended hereby (with such changes
as the Company, the Purchase Contract Agent and the Remarketing Agent may agree
upon, it being understood that changes may be necessary in the representations,
warranties, covenants and other provisions hereof due to changes in law or facts
and circumstances).
(b) With respect to the provisions of the Underwriting Agreement
incorporated herein, for the purposes hereof, (i) all references therein to the
"Underwriter" or "Underwriters" shall be deemed to refer to the Remarketing
Underwriter; (ii) all references therein to the "Securities" which are the
subject thereof shall be deemed to refer to the Securities as defined herein;
(iii) all references therein to the "Closing Date" shall be deemed to refer to
the Remarketing Closing Date specified in Schedule I hereto (the "Remarketing
Closing Date"); (iv) all references therein to the "Registration Statement" and
the "Prospectus" shall be deemed to refer to the Registration Statement and the
Final Prospectus, respectively, as defined herein.
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4. PURCHASE AND SALE; REMARKETING UNDERWRITING FEE. Subject to the
terms and conditions and in reliance upon the representations and warranties
herein set forth or incorporated by reference herein and in the Remarketing
Agreement, the Remarketing Agent agrees to use its reasonable efforts to
remarket, in the manner set forth in Section 2(b) of the Remarketing Agreement,
the aggregate principal amount, as the case may be, of Securities set forth in
Schedule I hereto at a purchase price not less than 100% of the [Minimum Initial
Remarketing Price] [aggregate principal amount of the Securities]. In connection
therewith, the registered holder or holders thereof agree, in the manner
specified in Section 5 hereof, to pay to the Remarketing Agent a Remarketing Fee
equal to an amount not exceeding 25 basis points (0.25%) of [the Minimum Initial
Remarketing Price] [such aggregate principal amount,] payable by deduction from
any amount received in connection from such [Initial][Secondary] Remarketing in
excess of the [Minimum Initial Remarketing Price] [aggregate principal amount of
the Securities]. The right of each holder of Securities to have Securities
tendered for purchase shall be limited to the extent set forth in the last
sentence of Section 2(b) of the Remarketing Agreement (which is incorporated by
reference 17 herein). As more fully provided in Section 2(c) of the Remarketing
Agreement (which is incorporated by reference herein), the Remarketing Agent is
not obligated to purchase any Securities in the remarketing or otherwise, and
neither the Company nor the Remarketing Agent shall be obligated in any case to
provide funds to make payment upon tender of Securities for remarketing.
5. DELIVERY AND PAYMENT. Delivery of payment for the remarketed
Securities and payment of the Remarketing Underwriting Fee shall be made on the
Remarketing Closing Date (which shall be the Purchase Contract Settlement Date)
at the location and time specified in Schedule I hereto, which date and time may
be postponed by agreement between the Remarketing Underwriter, the Company and
the [registered holder or holders thereof]. Delivery of payment for the
remarketed Securities shall be [to or upon the order of the [registered holder
or holders of the remarketed Securities] by certified or official bank check or
checks drawn on or by a New York Clearing House bank and payable in immediately
available funds][in immediately available funds by wire transfer to an account
or accounts designated by the [Company] [registered holder or holders of the
remarketed Securities] or, if the remarketed Securities are represented by a
Global Security, by any method of transfer agreed upon by the Remarketing
Underwriter and the depositary for the Securities.
[It is understood that any registered holder or, if the Securities are
represented by a Global Security, any beneficial owner, that has an account at
the Remarketing Underwriter and tenders its Securities through such account will
not be required to pay any fee or commission to the Remarketing Underwriter.]
If the Securities are not represented by a Global Security,
certificates for the Securities shall be registered in such names and
denominations as the Remarketing Underwriter may request not less than three
full business days in advance of the Remarketing Closing Date, and the Company
and the [registered holder or holders thereof] agree to have such certificates
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available for inspection, packaging and checking by the Remarketing Underwriter
in New York, New York not later than 1:00 p.m. on the Business Day prior to the
Remarketing Closing Date.
6. NOTICES. Unless otherwise specified, any notices, requests, consents
or other communications given or made hereunder or pursuant hereto shall be made
in writing or transmitted by any standard form of telecommunication, including
telephone, telegraph or telecopy, and confirmed in writing. All written notices
and confirmations of notices by telecommunication shall be deemed to have been
validly given or made when delivered or mailed, registered or certified mail,
return receipt requested and postage prepaid. All such notices, requests,
consents or other communications shall be addressed as follows: if to the
Company, to Affiliated Managers Group, Inc., 000 Xxxx Xxxxxx, Xxxxxx Xxxxxxxx,
XX 00000, Attention: Xxxxxxx X. Crate, with a copy to Xxxxxxx Procter LLP,
Exchange Place, Boston, MA 02109-2881, Attention: Xxxxxx Xxxxxxxxxx; if to the
Remarketing Underwriter, to Xxxxxxx Xxxxx & Co., World Financial Center, Xxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Investment Banking, with a copy to
Sidley Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention:
X. Xxxxxx Wiltshire; and if to the Purchase Contract Agent, to First Union
National Bank, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Corporate Trust NY 4040, or to such other address as any of the above shall
specify to the other in writing.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Purchase Contract Agent and the Remarketing Underwriter.
Very truly yours,
AFFILIATED MANAGERS GROUP, INC.
By:_________________________________
Name:
Title:
CONFIRMED AND ACCEPTED:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:_________________________________
Name:
Title:
--
not individually but solely as Purchase Contract
Agent and as attorney-in-fact for the holders
of the Purchase Contracts
By:__________________________________
Name:
Title:
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SCHEDULE I
Purchase Contract Agreement dated as of December 21, 2001 by and between
Affiliated Managers Group, Inc., a Delaware company, and First Union National
Bank, a national banking corporation
Pledge Agreement dated as of December 21, 2001 by and between Affiliated
Managers Group, Inc., a Delaware company, and First Union National Bank, as
Collateral Agent, Custodial Agent and Securities Intermediary, and as Purchase
Contract Agent
Registration Statement No. 333-74558
Aggregate principal Amount of Securities: $200,000,000 ($230,000,000 if the
Underwriters' over-allotment option is exercised)
Underwriting Agreement, dated as of December 18, 2001 between Affiliated
Managers Group, Inc. and Xxxxxxx Xxxxx & Co. and Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, Xxxxxxx Sachs & Co. and Xxxxxx Xxxxxxx & Co. Incorporated.
Remarketing Underwriting Fee: --% (--)
Remarketing Closing Date, Time and Location: [Closing Date], [Time] and
[Location]
SCH-I-1
