Exhibit 10.8.9
ARTHUR J. GALLAGHER & CO. AND AJG FINANCIAL SERVICES, INC.
NINTH AMENDMENT TO CREDIT AGREEMENT
Harris Trust and Savings Bank Citibank, N.A.
Chicago, Illinois New York, New York
Bank of America, N.A. LaSalle Bank National Association
Chicago, Illinois Chicago, Illinois
The Northern Trust Company
Chicago, Illinois
Ladies and Gentlemen:
This Ninth Amendment to Credit Agreement dated as of November 13, 2002
(herein, the "Amendment") is entered into by and between the undersigned, Arthur
J. Gallagher & Co, a Delaware corporation ("Gallagher"), AJG Financial Services,
Inc., a Delaware corporation ("AJG"; Gallagher and AJG being referred to herein
collectively as the "Borrowers" and individually as a "Borrower"), Citibank,
N.A., Bank of America, N.A., LaSalle Bank National Association, The Northern
Trust Company and Harris Trust and Savings Bank, individually and as Agent (the
"Agent"). Reference is hereby made to that certain Credit Agreement dated as of
September 11, 2000, as amended, between the Borrowers, the Banks and the Agent
(the "Credit Agreement"). All capitalized terms used herein without definition
shall have the same meanings herein as such terms have in the Credit Agreement.
The Borrowers desire to modify certain provisions with respect to the
issuance of Letters of Credit, and the Banks are willing to do so under the
terms and conditions set forth in this Amendment.
SECTION 1. AMENDMENTS.
Subject to the satisfaction of the conditions precedent set forth in
Section 2 below, the Credit Agreement shall be and hereby is amended as follows:
1.1. Section 1.3(b) of the Credit Agreement shall be amended and
restated in its entirety to read as follows:
"(b) Applications. At any time on or after the Effective Date and
before the Termination Date, the Agent shall, at the request of the
relevant Borrower, issue one or more Letters of Credit for the account
of such Borrower, in a form satisfactory to the Agent, with expiration
dates no later than the earliest of (i) 12 months from the date of
issuance or (ii) 365 days after the Termination Date, in an
aggregate face amount as set forth above, upon the receipt of a duly
executed application for the relevant Letter of Credit in the form
customarily prescribed by the Agent for the type of Letter of Credit,
whether standby or commercial, requested (each an "Application");
provided, that with respect to any Letter of Credit with an expiration
date that is later than the Termination Date, the relevant Borrower
shall deliver to the Agent no later than 20 days prior to the
Termination Date cash collateral in an amount equal to the full amount
then available for drawing under such Letter of Credit. Any such cash
collateral required by this Section 1.3(b) shall be held by the Agent
pursuant to the terms of Section 10.4 hereof. Notwithstanding anything
contained in any Application to the contrary (i) the Borrowers'
obligation to pay fees in connection with each Letter of Credit shall
be as exclusively set forth in Section 5.1(b) hereof, (ii) except
during the continuance of an Event of Default, the Agent will not call
for the funding by the Borrowers of any amount under a Letter of
Credit before being presented with a drawing thereunder, and (iii) if
the Agent is not timely reimbursed for the amount of any drawing under
a Letter of Credit on the date such drawing is paid, the Borrowers'
obligation to reimburse the Agent for the amount of such drawing shall
bear interest (which the Borrowers hereby jointly and severally
promise to pay) from and after the date such drawing is paid until
payment in full thereof (i) in the case of a drawing under a Letter of
Credit denominated in U.S. Dollars, at a rate per annum equal to the
sum of 2% plus the Domestic Rate from time to time in effect and (ii)
in the case of a drawing under a Letter of Credit denominated in an
Alternative Currency, at a rate per annum equal to the sum of 2% plus
the Applicable Margin for Eurocurrency Loans under the Revolving
Credit plus the Overnight Eurocurrency Rate. The Agent will promptly
notify the Banks of each issuance by it of a Letter of Credit. If the
Agent issues any Letters of Credit with expiration dates that are
automatically extended under the terms set forth in such Letter of
Credit, then the Agent will give notice of non-renewal before the time
necessary to prevent such automatic extension if before such required
notice date (i) the expiration date of such Letter of Credit if so
extended would be later than 365 days after the Termination Date, (ii)
the Commitments have been terminated or (iii) an Event of Default
exists and the Required Banks have given the Agent instructions not to
so permit the extension of the expiration date of such Letter of
Credit. The Agent agrees to issue amendments to the Letters of Credit
increasing the amount, or extending the expiration date, thereof at
the request of the relevant Borrower subject to the conditions of
Section 8.2 and the other terms of this Section 1.3. Without limiting
the generality of the foregoing, the Agent's obligation to
-2-
issue, amend or extend the expiration date of a Letter of Credit is
subject to the conditions of Section 8.2 and the other terms of this
Section 1.3 and the Agent will not issue, amend or extend the
expiration date of any Letter of Credit if any Bank notifies the Agent
of any failure to satisfy or otherwise comply with such conditions and
terms and directs the Agent not to take such action. Except as
specifically provided for in this Section 1.3(b), no amendment to a
Letter of Credit shall extend the expiration date of such Letter of
Credit beyond the Termination Date without the consent of each Bank
having a Revolving Credit Commitment."
1.2. Section 10.1(b) of the Credit Agreement shall be amended and
restated in its entirety to read as follows:
"(b) default in the observance or performance of any covenant set
forth in Sections 1.3(b), 9.5, 9.7, 9.8, 9.9, 9.10, 9.12, 9.13, 9.14,
9.15, 9.16 or 9.20 hereof; or"
SECTION 2. CONDITIONS PRECEDENT.
The effectiveness of this Amendment is subject to the satisfaction of all
of the following conditions precedent:
2.1. The Borrowers and the Banks shall have executed and delivered
this Amendment.
2.2. Legal matters incident to the execution and delivery of this
Amendment shall be satisfactory to the Agent and its counsel.
SECTION 3. REPRESENTATIONS.
In order to induce the Agent and the Banks to execute and deliver this
Amendment, the Borrowers hereby represent to the Agent and the Banks that as of
the date hereof the representations and warranties set forth in Section 7 of the
Credit Agreement are and shall be and remain true and correct (except that the
representations contained in Section 7.5 shall be deemed to refer to the most
recent financial statements of the Borrowers delivered to the Agent and the
Banks) and the Borrowers are in compliance with the terms and conditions of the
Credit Agreement and no Default or Event of Default has occurred and is
continuing under the Credit Agreement or shall result after giving effect to
this Amendment.
SECTION 4. MISCELLANEOUS.
4.1. Except as specifically amended herein, the Credit Agreement shall
continue in full force and effect in accordance with its original terms.
Reference to this specific Amendment need not be made in the Credit Agreement,
the Notes, or any other instrument or document executed in connection therewith,
or in any certificate, letter or communication issued or made
-3-
pursuant to or with respect to the Credit Agreement, any reference in any of
such items to the Credit Agreement being sufficient to refer to the Credit
Agreement as amended hereby.
4.2. The Borrowers agree to pay on demand all costs and expenses of or
incurred by the Agent in connection with the negotiation, preparation, execution
and delivery of this Amendment, including the fees and expenses of counsel for
the Agent.
4.3. This Amendment may be executed in any number of counterparts, and by
the different parties on different counterpart signature pages, all of which
taken together shall constitute one and the same agreement. Any of the parties
hereto may execute this Amendment by signing any such counterpart and each of
such counterparts shall for all purposes be deemed to be an original. This
Amendment shall be governed by the internal laws of the State of Illinois.
-4-
This Ninth Amendment to Credit Agreement is entered into as of the date and
year first above written.
ARTHUR J. GALLAGHER & CO.
By /s/ JACK H. LAZZARO
----------------------------------
Name: Jack H. Lazzaro
----------------------------
Title: Vice President & Treasurer
---------------------------
AJG FINANCIAL SERVICES, INC.
By /s/ JACK H. LAZZARO
-----------------------------------
Name: Jack H. Lazzaro
----------------------------
Title: Chief Financial Officer
---------------------------
-5-
Accepted and agreed to.
HARRIS TRUST AND SAVINGS BANK,
individually and as Agent
By /s/ M. JAMES BARRY, III
--------------------------------
Name M. James Barry, III
---------------------------
Title Vice President
-------------------------
CITIBANK, N.A.
By /s/ PETER C. BICKFORD
--------------------------------
Name Peter C. Bickford
---------------------------
Title Vice President
-------------------------
BANK OF AMERICA, N.A.
By /s/ R. GUY STAPLETON
--------------------------------
Name R. Guy Stapleton
---------------------------
Title Managing Director
--------------------------
LASALLE BANK NATIONAL ASSOCIATION
By /s/ KYLE FREIMUTH
--------------------------------
Name Kyle Freimuth
---------------------------
Title Vice President
--------------------------
THE NORTHERN TRUST COMPANY
By /s/ ERIC DYBING
--------------------------------
Name Eric Dybing
---------------------------
Title Second Vice President
--------------------------
-6-