FOURTH AMENDED AND RESTATED LETTER OF CREDIT ANDREIMBURSEMENT AGREEMENT dated as of

EX-10.LL 8 dex10ll.htm FOURTH AMENDED AND RESTATED LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT Fourth Amended and Restated Letter of Credit and Reimbursement Agreement

EXHIBIT 10(ll)

 

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FOURTH AMENDED AND RESTATED

 

LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT

 

dated as of

 

December 10, 2004

 

among

 

LINCOLN NATIONAL CORPORATION,

as an Account Party and Guarantor

 

The SUBSIDIARY ACCOUNT PARTIES,

as additional Account Parties

 

The BANKS Party Hereto

 

and

 

JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

 

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$900,000,000

 

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J.P. MORGAN SECURITIES INC.

and

WACHOVIA CAPITAL MARKETS, LLC,

as Joint Lead Arrangers and Joint Bookrunners

 

WACHOVIA BANK, NATIONAL ASSOCIATION,

as Syndication Agent

 

THE BANK OF NEW YORK

and

CITIBANK, N.A.,

as Documentation Agents

 

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FOURTH AMENDED AND RESTATED LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT dated as of December 10, 2004 (this “Fourth Amendment and Restatement”) among LINCOLN NATIONAL CORPORATION, an Indiana corporation (together with its successors and permitted assigns, the “Company”), the SUBSIDIARY ACCOUNT PARTIES party hereto (the “Subsidiary Account Parties”), the BANKS party hereto (including each Person listed under the caption “BANKS” on the signature pages hereto that is not a “Bank” under the Existing LC Agreement referred to below (each a “New Bank”), the “Banks”) and JPMORGAN CHASE BANK, N.A. (formerly known as JPMorgan Chase Bank) (“JPMCB”), as administrative agent for the Banks (in such capacity, together with its successors in such capacity, the “Administrative Agent”).

 

W I T N E S S E T H:

 

WHEREAS, the Company, each Subsidiary Account Party, the banks party thereto (the “Existing Banks”) and JPMCB, as Administrative Agent, are parties to the Third Amended and Restated Letter of Credit and Reimbursement Agreement dated as of December 11, 2003 (as amended and in effect immediately prior to the satisfaction (or waiver) of the conditions set forth in Section 4 hereof, the “Existing LC Agreement”);

 

WHEREAS, each of the Existing Banks that is not listed under the caption “BANKS” on the signature pages hereto (collectively, the “Retiring Banks”) will cease being a “Bank” under the Existing LC Agreement as of the Restatement Effective Date (as defined in Section 4 hereof), and each of the New Banks wishes to become a “Bank” under the Existing LC Agreement as amended and restated by this Fourth Amendment and Restatement; and

 

WHEREAS, the Company has requested certain amendments to provisions of the Existing LC Agreement, including the extension of the availability of the commitments thereunder, and the Banks (including the New Banks) are willing to make such amendments on the terms and conditions set forth below;

 

NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree that, effective as of the Restatement Effective Date (as defined in Section 4 hereof), the Existing LC Agreement shall be amended and restated to read in its entirety as set forth in the Existing LC Agreement, which is incorporated herein by this reference, subject to the amendments set forth in Section 2 hereof (the Existing LC Agreement, as so amended and restated hereby, is herein called the “Fourth Amended and Restated LC Agreement”):

 

Section 1. Definitions. Except as otherwise defined herein, terms defined in the Existing LC Agreement have the meanings ascribed thereto in the Existing LC Agreement, after giving effect to the amendments set forth in Section 2 hereof.

 

Section 2. Amendments. Effective as of the Restatement Effective Date, the Existing LC Agreement is hereby amended as follows:

 

2.01. Certain References. References in the Existing LC Agreement to (i) “this Agreement” or words of similar import (including indirect references to the Existing LC Agreement) and in Exhibits A, B and C to the Existing LC Agreement to “the Third Amended

 

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and Restated Letter of Credit and Reimbursement Agreement dated as of December 11, 2003” shall be deemed to be references to the Fourth Amended and Restated LC Agreement, (ii) “Schedule I” and “Schedule II” or words of similar import (including indirect references to such schedule) shall be deemed to be references to Schedule I and Schedule II, respectively, to this Fourth Amendment and Restatement and (iii) “Effective Date” (other than in Exhibits A and C thereto) shall be deemed to be references to the Restatement Effective Date.

 

2.02. Recitals. The recitals in the Existing LC Agreement shall be amended and restated in their entirety to read as follows: “The parties hereto agree as follows:”.

 

2.03. Certain Definitions.

 

(a) The last sentence of the definition of “Commitment” contained in Section 1.01 of the Existing LC Agreement shall be amended in its entirety to read as follows: “The aggregate amount of the Banks’ Commitments is $900,000,000 as of the Restatement Effective Date.”

 

(b) Section 1.01 of the Existing LC Agreement shall be amended by inserting the following definitions (or, in the case of any of the following defined terms that are already defined in the Existing LC Agreement, by amending and restating in its entirety each such term to read as set forth below) in their proper respective alphabetical locations:

 

“Applicable Rate” means, for any day, with respect to the facility fees or letter of credit fees payable hereunder, as the case may be, the applicable rate per annum set forth below under the caption “Facility Fee” or “Letter of Credit Fee”, respectively, based upon the ratings by Moody’s and S&P, respectively, applicable on such date to the Index Debt:

 

		Index Debt Ratings (S&P/Moody’s)		Facility Fee			Letter of Credit Fee
Category 1		> A / A2		0.06	%		0.215	%
Category 2		A- / A3		0.08	%		0.245	%
Category 3		BBB+ / Baa1		0.10	%		0.30	%
Category 4		< BBB / Baa2		0.15	%		0.50	%

 

For purposes of the foregoing, (a) if the ratings established or deemed to have been established by Moody’s and S&P for the Index Debt shall fall within different Categories that are one Category apart, the Applicable Rate shall be determined by reference to the Category of the higher of the two ratings; (b) if the ratings established or deemed to have been established by Moody’s and S&P for the Index Debt shall fall within different Categories that are more than one

 

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Category apart, the Applicable Rate shall be determined by reference to the Category next below that of the higher of the two ratings; (c) if only one of Moody’s and S&P shall have in effect a rating for the Index Debt, the Applicable Rate shall be determined by reference to the Category of such rating; (d) if neither Moody’s nor S&P shall have in effect a rating for the Index Debt (other than by reason of the circumstances referred to in the last sentence of this definition), then the applicable rating shall be determined by reference to Category 4; and (e) if the ratings established or deemed to have been established by Moody’s and S&P for the Index Debt shall be changed (other than as a result of a change in the rating system of Moody’s or S&P), such change shall be effective as of the date on which it is first announced by the applicable rating agency, irrespective of when notice of such change shall have been furnished by the Company to the Administrative Agent and the Banks pursuant to Section 5.01 or otherwise. Each change in the Applicable Rate shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change. If the rating system of Moody’s or S&P shall change, or if either such rating agency shall cease to be in the business of rating corporate debt obligations, the Company and the Banks shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agency and, pending the effectiveness of any such amendment, the Applicable Rate shall be determined by reference to the rating of Moody’s and/or S&P, as the case may be, most recently in effect prior to such change or cessation.

 

“Commitment Termination Date” means December 10, 2009 or, if such day is not a Business Day, the next preceding Business Day.

 

“Company’s 2003 Form 10-K” means the Company’s annual report on Form 10-K for 2003, as filed with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended.

 

“JPMCB” means JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank).

 

“Restatement Effective Date” has the meaning set forth in Section 4 of the Fourth Amended and Restated Letter of Credit and Reimbursement Agreement dated as of December 10, 2004.

 

(c) The definition of “Effective Date” contained in Section 1.01 of the Existing LC Agreement shall be deleted in its entirety.

 

(d) The definition of “Existing LC Agreement” contained in Section 1.01 of the Existing LC Agreement shall be deleted in its entirety.

 

(e) Each reference to the term “Company’s 2002 Form 10-K” in the Existing LC Agreement shall be amended and replaced with the term “Company’s 2003 Form 10-K”.

 

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2.04. Expiry Date of Letters of Credit. Section 2.01(d) of the Existing LC Agreement shall be amended and restated in its entirety as follows:

 

“(d) Expiry Date. Each Committed Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (provided that such Committed Letter of Credit may contain “evergreen” provisions for the renewal or extension thereof to a date one year after the then current expiry date thereof) or (ii) December 31, 2010.”

 

2.05. Existing Letters of Credit. Section 2.01(h) of the Existing LC Agreement shall be deleted in its entirety.

 

2.06. Alternative Currency Letters of Credit. The seventh and eighth sentences of Section 2.03(e) of the Existing LC Agreement shall be amended and restated in their entirety as follows:

 

“At any time, and from time to time, while an Event of Default has occurred and is continuing, the Administrative Agent shall, if instructed by the Required Banks in their sole discretion, liquidate any such investments and reinvestments and credit the proceeds thereof to the Collateral Account and apply or cause to be applied such proceeds and any other balances in the Collateral Account to the payment of any of the Secured Obligations due and payable. If at any time (i) no Default has occurred and is continuing and (ii) all of the Secured Obligations then due have been paid in full but Committed Letters of Credit remain outstanding, the Administrative Agent shall, from time to time, at the request of the Company, deliver to the Company, against receipt but without any recourse, warranty or representation whatsoever, such of the balances in the Collateral Account as exceed the aggregate undrawn face amount of all outstanding Committed Letters of Credit.”

 

2.07. Increase of the Commitments. Section 2.04(e) of the Existing LC Agreement shall be amended by deleting the amount “$800,000,000” in the third line thereof and replacing it with the amount “$1,000,000,000”.

 

2.08. Facility Fees. Section 2.05(a) of the Existing LC Agreement shall be amended and restated in its entirety as follows:

 

“(a) The Company agrees to pay to the Administrative Agent for account of each Bank a facility fee, which shall accrue at the Applicable Rate, (i) prior to the termination of such Bank’s Commitment, on the daily amount of the Commitment of such Bank (whether used or unused) during the period from and including the Restatement Effective Date to but excluding the date that the Commitments terminate and (ii) if such Bank continues to have any LC Exposure after its Commitment terminates, on the daily amount of such Bank’s LC Exposure from and including the date its Commitment terminates to but excluding the date such Bank ceases to have any LC Exposure. Accrued facility fees shall be payable on each Quarterly Date and (if the Commitments shall have terminated) on the date the Banks cease to have any LC Exposure, commencing on the first such date after the Restatement Effective Date; provided that any facility fee accruing after the earlier of the date the Commitments terminate or the Commitment Termination Date shall be payable on demand at any time a Default has occurred and is continuing. Facility fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).”

 

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In addition, the reference to “commitment fees” in Sections 2.05(d) of the Existing LC Agreement and to “commitment fee” in Section 2.06(c) of the Existing LC Agreement shall be amended and replaced with the words “facility fees” and “facility fee”, respectively.

 

2.09. Letter of Credit Fees. The second sentence of Section 2.05(b) of the Existing LC Agreement shall be amended and restated in its entirety as follows:

 

“Letter of credit fees accrued through and including each Quarterly Date shall be payable on the third Business Day following such Quarterly Date, commencing on the first such Business Day to occur and (if the Commitments shall have terminated) on the date the Banks cease to have any LC Exposure; provided that any letter of credit fee accruing after the earlier of the date the Commitments terminate or the Commitment Termination Date shall be payable on demand at any time a Default has occurred and is continuing.”

 

2.10. Alternative Currency Letters of Credit. The last sentence of Section 2.07(a) of the Existing LC Agreement shall be amended and restated in its entirety as follows:

 

“Each such Alternative Currency Letter of Credit shall be issued, and subsequently, renewed, extended, amended and confirmed, on such terms as the Company, the applicable Account Party and such Bank shall agree, including, without limitation, expiry, drawing conditions, reimbursement, interest, fees and provision of cover; provided that the expiry of any Alternative Currency Letter of Credit shall not be later than the close of business on the earlier of (i) the date one year after the date of the issuance of such Alternative Currency Letter of Credit (provided, that such Alternative Currency Letter of Credit may contain “evergreen” provisions for the renewal or extension thereof to a date one year after the then current expiry date thereof) or (ii) December 31, 2010.”

 

2.11. Effectiveness. Section 3.02 of the Existing LC Agreement shall be deleted in its entirety.

 

2.12. Financial Information.

 

(a) Section 4.04(a) of the Existing LC Agreement shall be amended by deleting the year “2002” in the second line thereof and replacing it with the year “2003”.

 

(b) Section 4.04(b) of the Existing LC Agreement shall be amended by deleting the year “2003” in each place where such number appears and replacing it with the year “2004” in each case.

 

(c) Section 4.04(c) of the Existing LC Agreement shall be amended by deleting the year “2002” replacing it with the year “2003”.

 

(d) Section 4.04(d) of the Existing LC Agreement shall be amended by deleting the year “2003” replacing it with the year “2004”.

 

(e) Section 4.04(e) of the Existing LC Agreement shall be amended by deleting the year “2002” replacing it with the year “2003”.

 

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2.13. Minimum Adjusted Consolidated Net Worth. Section 5.07 of the Existing LC Agreement shall be amended and restated in its entirety as follows:

 

“SECTION 5.07. Minimum Adjusted Consolidated Net Worth. The Company will not permit at any time Adjusted Consolidated Net Worth to be less than the sum of (i) $3,800,000,000 plus (ii) 50% of the consolidated net income of the Company and its Consolidated Subsidiaries for each fiscal quarter ending on or after December 31, 2004; provided that in calculating such consolidated net income for any fiscal quarter the impact thereon of FIN 46 and DIG B36 shall be excluded. For purposes of this Section, if, for any such quarter, consolidated net income of the Company and its Consolidated Subsidiaries shall be less than zero, the amount calculated pursuant to clause (ii) above for such fiscal quarter shall be zero.”

 

2.14. Defaults.

 

(a) The last sentence of Section 6.01 of the Existing LC Agreement shall be deleted in its entirety.

 

(b) The last sentence of Section 6.03 of the Existing LC Agreement shall be deleted in its entirety.

 

2.15. Lead Arrangers and Other Agents. Section 7.11 of the Existing LC Agreement shall be amended and restated in its entirety to read as follows:

 

“SECTION 7.11. Lead Arrangers and Other Agents. Notwithstanding anything herein to the contrary, no Lead Arranger, Syndication Agent or Documentation Agent listed on the cover page of this Agreement shall have any right, power, obligation, liability, responsibility or duty under this Agreement in its capacity as such, except in its respective capacity, if any, as a Bank.”

 

2.16. Notices. Section 10.01 of the Existing LC Agreement shall be amended by inserting a new second paragraph at the end of thereof to read as follows:

 

“Notices and other communications to the Banks hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable Bank. The Administrative Agent or the Account Parties may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.”

 

2.17. Confidentiality. The last two sentences of Section 10.11 of the Existing LC Agreement shall be deleted in their entirety.

 

2.18. USA PATRIOT Act. A new Section 10.15 shall be inserted at the end of Section 10 of the Existing LC Agreement to read as follows:

 

“SECTION 10.15. USA PATRIOT Act. Each Bank hereby notifies the Account Parties that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L.

 

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107-56 (signed into law October 26, 2001)), such Bank may be required to obtain, verify and record information that identifies the Account Parties, which information includes the name and address of the Account Parties and other information that will allow such Bank to identify the Account Parties in accordance with said Act.”

 

Section 3. Representations and Warranties. Each Account Party hereby represents and warrants to the Banks and the Administrative Agent that:

 

(a) the representations and warranties set forth in Article IV of the Existing LC Agreement, as amended and restated hereby, are true and correct as of the Restatement Effective Date with the same force and effect as if made on and as of the Restatement Effective Date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date) and, in addition, as if each reference therein to the Existing LC Agreement referred to this Fourth Amendment and Restatement; and

 

(b) no Default has occurred and is continuing on the Restatement Effective Date.

 

Section 4. Conditions Precedent. The amendment and restatement of the Existing LC Agreement contemplated hereby and the obligations of the Banks to continue, amend, extend or issue Letters of Credit under the Fourth Amended and Restated LC Agreement shall become effective as of the date (the “Restatement Effective Date”) that the Administrative Agent shall have received each of the following, in form and substance satisfactory to it (or such condition shall have been waived in accordance with Section 10.05 of the Existing LC Agreement):

 

4.01. Fourth Amended and Restated LC Agreement. This Fourth Amendment and Restatement, duly executed and delivered by the Company, each other Account Party, the Banks and the Administrative Agent.

 

4.02. Resolutions. A certified copy of the resolutions of the Board of Directors of the Company, authorizing the execution, delivery and performance of this Fourth Amendment and Restatement and the Fourth Amended and Restated LC Agreement.

 

4.03. Officer Certificates. A certificate, dated the Restatement Effective Date and signed by the senior financial officer of the Company, certifying the representations and warranties set forth in Section 3 hereof.

 

4.04. Opinions. An opinion of (i) Dennis L. Schoff, Esq., General Counsel of the Company and (ii) Milbank, Tweed, Hadley & McCloy LLP, special New York counsel to JPMCB.

 

4.05. Other Corporate Documentation. All documents, opinions and instruments as the Administrative Agent may reasonably request relating to the existence of each Account Party, the corporate authority for and the validity and enforceability of this Fourth Amendment and Restatement, and any other matters related hereto.

 

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4.06. Payments under Existing LC Agreement, Etc. Evidence satisfactory to the Administrative Agent of payment (or of irrevocable instructions for payment) in full of:

 

(a) all fees payable to J.P. Morgan Securities Inc., Wachovia Capital Markets, LLC, the Administrative Agent and/or the Banks in connection with this Fourth Amendment and Restatement as may be separately agreed between any such persons and the Company;

 

(b) all unpaid fees payable under Section 2.05 of the Existing LC Agreement, accrued through but not including the Restatement Effective Date;

 

(c) all other unpaid amounts owing to each Retiring Bank under the Existing LC Agreement as of the Restatement Effective Date; and

 

(d) all reasonable costs and expenses of the Administrative Agent in connection with this Fourth Amendment and Restatement, including, without limitation, the reasonable fees and expenses of Milbank, Tweed, Hadley & McCloy LLP, special New York counsel to JPMCB, in connection with the negotiation, preparation, execution and delivery of this Fourth Amendment and Restatement (to the extent that invoices for such fees and expenses have been delivered to the Company at least two Business Days prior to the Restatement Effective Date).

 

4.07. Termination of Other Credit Agreements. Evidence satisfactory to the Administrative Agent of (a) the termination of the commitments of the respective lenders under the Credit Agreement dated as of December 11, 2003 among the Company, the banks party thereto and JPMCB as administrative agent and the payment in full of all amounts owing thereunder and (b) the termination of the commitments of the respective lenders under the 5-Year Credit Agreement dated as of December 15, 2000 among the Company, the banks party thereto and JPMCB as administrative agent and the payment in full of all amounts owing thereunder (and each Bank that is party as a lender under any of the agreements referred to in clauses (a) and (b) above, by its execution and delivery of this Fourth Amendment and Restatement, hereby waives the requirement under each such agreement to which it is a party that notice of such termination be provided in advance of the date of termination).

 

Section 5. Retiring Banks. Each Retiring Bank shall, as of the Restatement Effective Date, cease to be a “Bank” under (and, accordingly, shall cease to be a party to) the Existing LC Agreement, and the Account Parties hereby confirm and agree that, as of the Restatement Effective Date, the Retiring Banks shall have no obligations or liabilities under the Fourth Amended and Restated Credit Agreement.

 

Section 6. Transitional Provisions. Upon the occurrence of the Restatement Effective Date, each of the Committed Letters of Credit and (if issued by a Bank) Alternative Currency Letters of Credit outstanding on the Restatement Effective Date under the Existing LC Agreement shall be automatically continued as a Committed Letter of Credit or Alternative Currency Letter of Credit, respectively, under the Fourth Amended and Restated LC Agreement; provided that the Administrative Agent shall promptly notify the beneficiary of each Committed Letter of Credit that is outstanding under the Existing LC Agreement and so continued of (a) the Banks that as of the Restatement Effective Date are parties thereto and (b) such Banks’ respective Applicable Percentages thereunder.

 

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Section 7. Miscellaneous. Except as herein provided, the Existing LC Agreement shall remain unchanged and in full force and effect. This Fourth Amendment and Restatement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Fourth Amendment and Restatement by signing any such counterpart and sending the same by telecopier, mail, messenger or courier to the Administrative Agent or special New York counsel to JPMCB. This Fourth Amendment and Restatement shall be governed by, and construed in accordance with, the law of the State of New York.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment and Restatement to be duly executed as of the date first above written.

 

 

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SCHEDULE I

 

Commitments

 

Banks		Commitment ($)
JPMorgan Chase Bank, N.A.			100,000,000
Wachovia Bank, National Association			100,000,000
The Bank of New York			71,964,286
Citibank, N.A.			71,964,286
Bank of America, N.A.			51,428,571
HSBC Bank USA, National Association			51,428,571
KeyBank National Association			51,428,571
Mellon Bank, N.A.			51,428,571
Wells Fargo Bank, National Association			51,428,571
ABN AMRO Bank N.V.			32,142,857
The Bank of Tokyo-Mitsubishi, Ltd, New York Branch			32,142,857
The Northern Trust Company			32,142,857
U.S. Bank National Association			32,142,857
BNP Paribas			22,500,000
Comerica Bank			22,500,000
Lehman Brothers Bank, FSB			22,500,000
Merrill Lynch Bank USA			22,500,000
Citizens Bank of Massachusetts			16,071,429
Fifth Third Bank			16,071,429
National City Bank			16,071,429
PNC Bank, National Association			16,071,429
Societe Generale			16,071,429
TOTAL COMMITMENTS		$	900,000,000

 

Schedule I (Commitments)

 

 

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SCHEDULE II

 

List of Restricted Subsidiaries

 

Lincoln National Life Insurance Company

 

Lincoln National Investments, Inc.

 

Lincoln National Investment Companies, Inc.

 

Delaware Management Holdings, Inc.

 

DMH Corp.

 

Schedule II (Restricted Subsidiaries)