Exhibit 4.1
SECOND SUPPLEMENTAL INDENTURE
Dated as of February 12, 2004
Between
AFFILIATED MANAGERS GROUP, INC., As
Issuer
AND
THE BANK OF NEW YORK,
As Trustee
SECOND SUPPLEMENTAL INDENTURE, dated
as of February 12, 2004 (the “Second Supplemental
Indenture”), between Affiliated Managers Group, Inc., a
corporation duly organized and existing under the laws of the State
of Delaware (the “Company”), and The Bank of New York,
a New York banking corporation, as trustee (the
“Trustee”).
WHEREAS, the Company executed and
delivered the Indenture dated as of December 21, 2001 (the
“Base Indenture”) to the Trustee to provide for the
issuance of the Company’s debentures, notes, bonds or other
evidence of indebtedness (the “Securities”), to be
issued from time to time in one or more series as might be
determined by the Company under the Base Indenture; and
WHEREAS, pursuant to the terms of
the Base Indenture, the Company desires to provide for the
establishment of a new series of its Securities to be known as its
4.125% Senior Notes initially due 2010 (the “Senior
Notes”), the form and terms of such Senior Notes and the
terms, provisions and conditions thereof to be set forth as
provided in the Base Indenture and this Second Supplemental
Indenture (together, the “Indenture”); and
WHEREAS, the Company has requested
that the Trustee execute and deliver this Second Supplemental
Indenture and all requirements necessary to make this Second
Supplemental Indenture a valid, binding and enforceable instrument
in accordance with its terms, and to make the Senior Notes, when
executed, authenticated and delivered by the Company, the valid,
binding and enforceable obligations of the Company, have been done
and performed, and the execution and delivery of this Second
Supplemental Indenture has been duly authorized in all
respects.
NOW THEREFORE, in consideration of
the purchase and acceptance of the Senior Notes by the Holders
thereof, and for the purpose of setting forth, as provided in the
Base Indenture, the form and terms of the Senior Notes, the Company
covenants and agrees with the Trustee as follows:
ARTICLE I
DEFINITIONS
Section 1.1
Definition of
Terms
Unless the context otherwise
requires:
(a)
a term defined in
the Base Indenture has the same meaning when used in this Second
Supplemental Indenture;
(b)
a term defined
anywhere in this Second Supplemental Indenture has the same meaning
throughout;
(c)
the singular
includes the plural and vice versa;
(d)
headings are for
convenience of reference only and do not affect
interpretation;
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(e)
the following
terms have the meanings given to them in the Purchase Contract
Agreement:
(i)
Applicable
Benchmark Treasury;
(ii)
Applicable
Ownership Interest;
(iii)
Applicable
Principal Amount;
(iv)
Authorized
Newspaper;
(v)
Business
Day;
(vi)
Cash
Settlement;
(vii)
Collateral
Agent;
(viii)
Contract
Adjustment Payments;
(ix)
Failed Final
Remarketing;
(x)
Failed Initial
Remarketing;
(xi)
Final
Remarketing;
(xii)
Final Remarketing
Date;
(xiii)
Growth
PRIDES;
(xiv)
Income
PRIDES;
(xv)
Initial
Remarketing;
(xvi)
Initial
Remarketing Date;
(xvii)
Purchase
Contract;
(xviii)
Purchase
Contract Agent;
(xix)
Quotation
Agent;
(xx)
Redemption
Amount;
(xxi)
Redemption
Price;
(xxii)
Remarketing
Agent;
(xxiii)
Remarketing
Announcement Date;
(xxiv)
Reset
Agent;
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(xxv)
Reset
Spread;
(xxvi)
Responsible
Officer;
(xxvii)
Security;
(xxviii)
Significant
Corporate Action;
(xxix)
Successful
Initial Remarketing;
(xxx)
Tax
Event;
(xxxi)
Treasury
Portfolio;
(xxxii)
Treasury
Portfolio Purchase Price;
(f)
the following
terms have the meanings given to them in this
Section 1.1(f):
“Corporate Trust Office”
means the principal corporate trust office of the Purchase Contract
Agent at which, at any particular time, its corporate trust
business shall be administered, which office at the date hereof is
located at 101 Barclay Street, Floor 8W, New York, New York
10286.
“Coupon Rate” means the
percentage rate per annum at which each Senior Note will bear
interest initially as set forth in Section 2.4(a).
“Custodial Agent” shall
have the meaning set forth in the Pledge Agreement.
“Interest Payment Date”
shall have the meaning set forth in Section 2.4
“Maturity Date” shall
mean February 17, 2010 unless extended by the Company in
connection with a successful remarketing of the Senior Notes
pursuant to the Remarketing Agreement; provided that, in connection
with any successful remarketing of the Senior Notes pursuant to the
Remarketing Agreement, the Company shall have the right to extend
the Maturity Date to a date that is three, five, seven or ten years
from the Reset Date and, if the Senior Notes are not successfully
remarketed by the third Business Day immediately preceding the
Purchase Contract Settlement Date, the Maturity Date shall be
February 17, 2010.
“Note Repayment
Price’” shall have the meaning set forth in
Section 3.4.
“Place of Payment” shall
have the meaning set forth in Section 2.3.
“Pledge Agreement” means
the Pledge Agreement, dated as of the date hereof, by and
among the Company, The Bank of New York, as collateral agent (the
“Collateral Agent”), custodial agent and securities
intermediary, and as purchase contract agent and
attorney-in-fact.
“Purchase Contract
Agreement” means the Purchase Contract Agreement dated as of
the date hereof, between the Company and The Bank of New York, as
purchase contract agent.
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“Purchase Contract Settlement
Date” means February 17, 2008.
“Put Option” shall have
the meaning set forth in Section 3.4.
“Put Option Exercise
Date” shall have the meaning set forth in
Section 3.4.
“Regular Record Date”
means, with respect to any Interest Payment Date for the Senior
Notes, the close of business fifteen calendar days prior to each
Interest Payment Date.
“Remarketing Agent”
means Merrill Lynch, Pierce, Fenner & Smith Incorporated or any
successor thereto or replacement Remarketing Agent under the
Remarketing Agreement.
“Remarketing Agreement”
means the Remarketing Agreement, dated as of the date hereof, among
the Company, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as remarketing agent, and The Bank of New York, as
purchase contract agent and attorney-in-fact.
“Remarketing Fee” means
25 basis points (0.25%) of the aggregate principal amount of the
remarketed Senior Notes if the maturity date of the remarketed
Senior Notes is on or prior to February 17, 2010, or, if the
maturity date of the Senior Notes is extended on the Reset Date,
such other amount as agreed between the Company and the Remarketing
Agent.
“Reset Date” means the
third Business Day immediately following the date on which the
Senior Notes are successfully remarketed.
“Tax Event Redemption
Date” shall have the meaning set forth in
Section 3.1.
“Tax Event Redemption”
means, if a Tax Event shall occur and be continuing, the redemption
of the Senior Notes, in whole but not in part, at the option of the
Company on not less than 30 days nor more than 60 days’
written notice.
The terms “Indenture,”
“Base Indenture,” and “Senior Notes” shall
have the respective meanings set forth in the recitals to this
Second Supplemental Indenture.
ARTICLE II
GENERAL TERMS AND CONDITIONS
OF THE SENIOR NOTES
Section 2.1
Designation and
Principal Amount.
There is hereby authorized a series
of Securities designated the Senior Notes initially due
February 17, 2010, (except as otherwise provided in
Article II of the Indenture) in aggregate principal amount
equal to $250,000,000. The Senior Notes may be issued from time to
time upon written order of the Company for the authentication and
delivery of Senior Notes pursuant to Section 202 of the Base
Indenture. The Company may from time to time authorize the
issuance of additional Senior Notes that will constitute a single
series with the Senior Notes referred to in the first sentence of
this paragraph without the consent of the Holders
thereof.
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Section 2.2
Maturity.
The Senior Notes shall mature and the principal amount thereof
shall be due and payable together with all accrued and unpaid
interest thereon on the Maturity Date.
Section 2.3
Form, Payment and
Appointment. The Senior Notes shall be issued in fully
registered, definitive form in the name of the Holder thereof.
Principal of and premium, if any, and interest on the Senior Notes
will be payable, the transfer of such Senior Notes will be
registrable and such Senior Notes will be exchangeable for Senior
Notes bearing identical terms and provisions, at the office or
agency of the Company maintained for such purpose as described
below; provided, however, that payment of interest may be made at
the option of the Company by check mailed to the Holder at such
address as shall appear in the Security Register or by wire
transfer to an account appropriately designated by the Holder
entitled to payment.
The Company hereby designates the
Borough of Manhattan, The City of New York as the place of payment
(“Place of Payment”) for the Senior Notes, and the
office or agency maintained by the Company in such Place of Payment
for the purposes contemplated by this Section 2.3 shall
initially be the Corporate Trust Office of the Trustee.
The Security Registrar transfer
agent and Paying Agent for the Senior Notes shall be The Bank of
New York. The Senior Notes shall be issuable in denominations of
$1,000,000 and integral multiples of $1,000 in excess
thereof.
Section 2.4
Interest.
(a)
Each Senior Note
will bear interest initially at the rate of 4.125% per annum (the
“Coupon Rate”) from February 12, 2004 to, but
excluding, the Reset Date, or, if no successful remarketing of the
Senior Notes occurs, February 17, 2010. On or prior to
the Reset Date interest payments will be payable quarterly in
arrears on February 17, May 17, August 17 and
November 17 of each year (each, an “Interest Payment
Date”) commencing on May 17, 2004, and on the Reset Date, if
the interest rate on the Senior Notes is reset on a Reset Date that
is not otherwise an Interest Payment Date, to the Person in whose
name such Senior Note, or any predecessor Senior Note, is
registered at the close of business on the Regular Record Date for
such interest installment. If interest on the Senior Notes is
reset on a Reset Date that is not a scheduled Interest Payment
Date, Holders of Senior Notes will receive on such Reset Date a
payment of accrued and unpaid interest from the most recent
Interest Payment Date to, but excluding, such Reset Date. If
the interest rate on the Senior Notes is reset on a Reset Date that
is not otherwise a quarterly Interest Payment Date, the Collateral
Agent will receive that interest payment made on Senior Notes
included in Income PRIDES which shall be paid to holders of Income
PRIDES on the quarterly Interest Payment Date next following that
Reset Date.
(b)
The interest rate
on the Senior Notes will be reset on the Remarketing Date to the
applicable Reset Rate except in the event of a Failed Final
Remarketing. In the event of a Failed Final Remarketing, the
interest rate on the Senior Notes will not be reset and interest
payments on all Senior Notes will remain payable quarterly in
arrears on the original Interest Payment Dates.
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The Reset Rate on the Senior Notes
will be determined on the date that the Senior Notes are
successfully remarketed and that Reset Rate will become effective
on the third Business Day immediately following the Remarketing
Date. Following a successful remarketing of the Senior Notes,
the Senior Notes will bear interest from the Reset Date at the
Reset Rate to, but excluding, February 17, 2010 or, if the
maturity of the Senior Notes is extended on the Reset Date, such
extended Maturity Date. From the Reset Date, interest
payments on all Senior Notes will be paid semi-annually in arrears
on the date that is six months from the Reset Date and, thereafter,
on each date that is six months from the prior semi-annual interest
payment date.
The Reset Rate on the Senior Notes
will be equal to the sum of the Reset Spread and the yield on the
Applicable Benchmark Treasury in effect on the third Business Day
immediately preceding the Reset Date and will be determined by the
Reset Agent. In the case of a determination on the third
Business Day immediately preceding the Reset Date (other than
February 17, 2008), the Reset Rate will be the rate determined
by the Reset Agent as the rate the Senior Notes should bear in
order for the Senior Notes included in Income PRIDES to have an
approximate aggregate market value on the Reset Date equal to
100.25% of the Treasury Portfolio Purchase Price, plus the
applicable Remarketing Fee. In the case of a determination on
the third Business Day immediately preceding February 17,
2008, the Reset Rate will be the rate determined by the Reset Agent
as the rate the Senior Notes should bear in order for the Senior
Notes to have an approximate aggregate market value equal to
100.25% of the principal amount of the Senior Notes, plus the
applicable Remarketing Fee. The Reset Rate will in no event
exceed the maximum rate permitted by applicable law.
On the seventh Business Day
immediately preceding the Reset Date, the Applicable Benchmark
Treasury to be used to determine the Reset Rates will be selected,
the Reset Spread to be added to the yield on the Applicable
Benchmark Treasury will be established by the Reset Agent, and the
Reset Spread and the Applicable Benchmark Treasury will be
announced by the Company (the “Remarketing Announcement
Date”). On the Business Day immediately following such
Remarketing Announcement Date, the Holders of Senior Notes will be
notified of such Reset Spread and Applicable Benchmark Treasury by
the Company. Such notice shall be sufficiently given to such
Holders of Senior Notes if published in an Authorized
Newspaper.
(c)
The amount of
interest payable for any period will be computed on the basis of a
360-day year consisting of twelve 30-day months. Except as provided
in the following sentence, the amount of interest payable for any
period other than a full quarterly or semi-annual period for which
interest is computed, will be computed on the basis of the actual
number of days in the period using 30-day calendar months. In
the event that any date on which interest is payable on the Senior
Notes is not a Business Day, then payment of interest payable on
such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect
of any such delay), except that, if such Business Day is in the
next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same
force and effect as if made on such date.
Interest on the Senior Notes will be
payable to the Holders of the Senior Notes as they appear on the
books and records of the Securities Registrar on the relevant
Regular Record Dates, which will be the 15th Business Day prior to
the relevant Interest Payment Date. In the event that the
Senior Notes do not continue to remain in certificated form and are
held by the
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Purchase Contract Agent or are held in
book-entry form, the Company shall have the right to select
relevant Regular Record Dates, which shall be at least one Business
Day and not more than 60 Business Days prior to the relevant
Interest Payment Dates, and to make payments by check mailed to the
address of the Holder as of the relevant Regular Record
Date.
Section 2.5
Certain Tax
Matters .
The Company agrees, and by
acceptance of a beneficial ownership interest in the Senior Notes,
each beneficial owner of Senior Notes will be deemed to have agreed
(1) to treat the acquisition of an Income PRIDES as the acquisition
of the Senior Note and the Purchase Contract constituting the
Income PRIDES and to allocate the issue price of the Income PRIDES
on the issue date of the Income PRIDES between the Senior Note and
the Purchase Contract in an amount equal to $1,000.00 and $0.00,
respectively, (2) to treat the Senior Notes as indebtedness of the
Company for all tax purposes, (3) to treat the Senior Notes as
indebtedness that is subject to Treasury regulation
section 1.1275-4 (the “Contingent Payment
Regulations”) for United States federal income tax purposes,
(4) to be bound by the Company’s determination of the
“comparable yield” and “projected payment
schedule,” within the meaning of the Contingent Payment
Regulations, with respect to the Senior Notes for United States
federal income tax purposes and (5) to treat each Senior Note and
each Purchase Contract constituting the Income PRIDES as separate
financial instruments for all tax purposes. A Holder of Senior
Notes may obtain the amount of original issue discount, issue date,
issue price, yield to maturity, comparable yield and projected
payment schedule by submitting a written request to the
Company at the following address: 600 Hale Street, Prides Crossing,
MA 01965, Attention: Chief Financial Officer.
ARTICLE III
REDEMPTION OF THE SENIOR
NOTES
Section 3.1
Tax Event
Redemption.
If a Tax Event shall occur and be
continuing, the Company may, at its option, redeem the Senior Notes
in whole (but not in part) at any time at a price per Senior Note
equal to the Redemption Price. Installments of interest on Senior
Notes which are due and payable on or prior to the date of
redemption (the “Tax Event Redemption Date”) will be
payable to the Holders of the Senior Notes registered as such at
the close of business on the Regular Record Date. If, following the
occurrence of a Tax Event prior to the Reset Date (or, if no
Successful Initial Remarketing occurs prior to the Purchase
Contract Settlement Date), the Company exercises its option to
redeem the Senior Notes, the Company shall appoint the Quotation
Agent to assemble the Treasury Portfolio in consultation with the
Company. Notice of any redemption will be mailed at least 30
days but not more than 60 days before the Tax Event Redemption Date
to each registered Holder of the Senior Notes to be repaid at its
registered address. Unless the Company defaults in payment of
the Redemption Price, on and after the Tax Event Redemption Date
interest shall cease to accrue on the Senior Notes.
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Section 3.2
Redemption
Procedures for Senior Notes.
Payment of the Redemption Price to
each Holder of Senior Notes shall be made by the Company, no later
than 12:00 noon, New York City time, on the Tax Event Redemption
Date, by check or wire transfer in immediately available funds at
such place and to such account as may be designated by each such
Holder of Senior Notes, including the Trustee or the Collateral
Agent, as the case maybe. If the Trustee holds immediately
available funds sufficient to pay the Redemption Price of the
Senior Notes, then, on such Tax Event Redemption Date, such Senior
Notes will cease to be outstanding and interest thereon will cease
to accrue, whether or not such Senior Notes have been received by
the Company, and all other rights of the Holder in respect of the
Senior Notes shall terminate and lapse (other than the right to
receive the Redemption Price upon delivery of such Senior Notes but
without interest on such Redemption Price).
Section 3.3
No Sinking
Fund.
The Senior Notes are not entitled to
the benefit of any sinking fund.
Section 3.4
Option to Put
Senior Notes upon Failed Final Remarketing.
If a Failed Final Remarketing (as
described in Section 5.4(b) of the Purchase Contract Agreement
and incorporated herein by reference) has occurred, Holders of
Senior Notes who hold such Senior Notes on the day immediately
following the Purchase Contract Settlement Date shall have the
right (the “Put Option”) to put such Senior Notes to
the Company on February 29, 2008 (the “Put Option
Exercise Date”), upon at least three Business Days prior
notice, at a repayment price equal to the principal amount of such
Senior Notes plus an amount equal to the accrued and unpaid
interest thereon to the date of payment (the “Note Repayment
Price”).
Section 3.5
Repurchase
Procedure for Senior Notes.
(a)
In order for the
Senior Notes to be repurchased on the Put Option Exercise Date, the
Trustee must receive on or prior to 5:00 p.m. New York City time on
the third Business Day immediately preceding the Put Option
Exercise Date, at its Corporate Trust Office or at an office or
agency maintained by the Company in the Borough of Manhattan, The
City of New York as contemplated by Section 2.3 hereof, the
Senior Notes to be repurchased with the form entitled “Option
to Elect Repayment” on the reverse of or otherwise
accompanying such Senior Notes duly completed. Any such
notice received by the Trustee shall be irrevocable. All
questions as to the validity, eligibility (including time of
receipt) and acceptance of the Senior Notes for repayment shall be
determined by the Company, whose determination shall be final and
binding.
(b)
Payment of the
Note Repayment Price shall be made through the Trustee, subject to
the Trustee’s receipt of payment from the Company in
accordance with the terms of the Indenture, no later than 12:00
noon, New York City time, on the Put Option Exercise Date, and to
such account as may be designated. If the Trustee holds
immediately available funds sufficient to pay the Note Repayment
Price of Senior Notes presented for repayment, then, immediately
prior to the close of business on the Put Option Exercise Date,
such Senior Notes will cease to be outstanding and interest thereon
will cease to accrue, whether or not such Senior Notes have been
received by the Company, and all other rights of the Holder in
respect of the Senior Notes, including the Holder’s right to
require the Company to repay such Senior Notes,
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shall terminate and lapse
(other than the right to receive the Note Repayment Price upon
delivery of such Senior Notes but without interest on such Note
Repayment Price). Neither the Trustee nor the Company will be
required to register or cause to be registered the transfer of any
Senior Note for which repayment has been elected.
ARTICLE IV
EXPENSES
Section 4.1
Payment of
Expenses.
In connection with the offering,
sale and issuance of the Senior Notes to the Holders, the Company,
in its capacity as borrower with respect to the Senior Notes shall
pay all costs and expenses relating to the offering, sale and
issuance of the Senior Notes, including compensation of the Trustee
under the Indenture in accordance with the provisions of
Section 606 of the Base Indenture.
ARTICLE V
NOTICE
Section 5.1
Notice by the
Company.
The Company shall give prompt
written notice to a Responsible Officer of the Trustee of any fact
known to the Company that would prohibit the making of any payment
of monies to or by the Trustee in respect of the Senior Notes.
Notwithstanding any of the provisions of the Base Indenture and
this Second Supplemental Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that would
prohibit the making of any payment of monies to or by the Trustee
in respect of the Senior Notes; provided, however, that if the
Trustee shall not have received the notice provided for in this
Article V at least two Business Days prior to the date upon
which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the
principal of (or premium, if any) or interest on any Senior Note),
then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such
money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary
that may be received by it within two Business Days prior to such
date.
ARTICLE VI
FORM OF SENIOR
NOTE
Section 6.1
Form of Senior
Note.
The Senior Notes and the
Trustee’s Certificate of Authentication to be endorsed
thereon are to be substantially in the following forms, with such
changes therein as the officers of the Company executing the Senior
Notes (by manual or facsimile signature) may approve, such approval
to be conclusively evidenced by their execution thereof:
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(FORM OF FACE OF NOTE)
IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT -
THIS SENIOR NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF
THE DEPOSITORY TRUST COMPANY OR A NOMINEE OF THE DEPOSITORY TRUST
COMPANY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME
OF A PERSON OTHER THAN THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND
NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A
WHOLE BY THE DEPOSITORY TRUST COMPANY TO A NOMINEE OF THE
DEPOSITORY TRUST COMPANY OR BY A NOMINEE OF THE DEPOSITORY TRUST
COMPANY TO THE DEPOSITORY TRUST COMPANY OR ANOTHER NOMINEE OF THE
DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR CLEARING AGENCY OR TO A
NOMINEE OF SUCH SUCCESSOR) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET,
NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL
SINCE THE REGISTER
