EXHIBIT 10.5
[LOGO] AEGON
INSURANCE GROUP
GUARANTEE
By: AEGON N.V. (the "GUARANTOR")
Whereas:
A. As part of its CDN 500,000,000 commercial paper program (the "PROGRAM")
Transamerica Commercial Finance Corporation, Canada (the "ISSUER") proposes,
from time to time, to issue Notes.
B. The Notes will be issued pursuant to an issuing and paying agency agreement
made as of April 30, 1989 as amended by a letter agreement dated October 1, 1998
between, the Issuer, Transamerica Finance Group, Inc. (nka Transamerica Finance
Corporation) and Canadian Imperial Bank of Commerce in its capacity as agent (as
the same may be replaced from time to time, the "ISSUING AND PAYING AGENT") (as
such agreement may be further amended, supplemented, replaced or otherwise
modified from time to time, the "ISSUING AND PAYING AGENCY AGREEMENT").
C. The Notes will be sold pursuant to one or more dealer agreements entered into
from time to time between the Issuer and the dealers named therein including
without limitation, the dealer agreement dated May 31, 1989 between the Issuer
and the dealers named in it (collectively, as such agreements may be amended,
supplemented, replaced or otherwise modified from time to time, the "DEALER
AGREEMENTS").
D. AEGON has agreed to guarantee unconditionally and irrevocably all payments of
principal, premium (if any) and interest (if any) due in respect of the Notes
issued during the term of this Guarantee as set forth above and issued as part
of the Program (the "Notes") by the Issuer pursuant to the Issuing and Paying
Agency Agreement.
Now this Guarantee witnesses and it is hereby declared as follows:
AEGON N.V., a corporation duly incorporated under the laws of The
Netherlands, hereby unconditionally and irrevocably guarantees to CDS & Co., as
nominee of the Canadian Depository for Securities Limited, or to its registered
assigns (in such capacity together with its registered assigns, "CDS")for the
benefit of CDS and each holder (a "HOLDER") of a Note issued by the Issuer, a
wholly-owned subsidiary of the Guarantor, and evidenced by one or more global
notes deposited with CDS (the "GLOBAL NOTES"), the prompt and punctual payment
(and not merely the collection) of all obligations represented by the Global
Notes, when and as the same shall become due and payable, without any
requirement that CDS, the Holder or the Issuing and Paying Agent first proceed
against the Issuer. All payments to be made under this Guarantee in respect of
the Global Notes shall be payable to CDS. This Guarantee shall also cover all
charges and expenses related to the Notes and all expenses incurred by either
CDS or the Holder in enforcing its rights under this Guarantee.
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The liability of the Guarantor under this Guarantee shall be
unconditional and irrevocable for the duration of this Guarantee, as hereinafter
set forth, irrespective of (i) any lack of validity or enforceability of any
Global Note or any Note, (ii) any change of the time, manner or place or
payment, or any other term, of any Global Note or any Note, (iii) any law,
regulation or order of any jurisdiction affecting any term of any Global Note or
any Note or CDS's or any Holder's rights with respect thereto, and (iv) any
other circumstances which might otherwise constitute a defence available to, or
a discharge of, the Issuer or the Guarantor.
The Guarantee shall extend to all Notes issued by the Issuer for the
period from August 1, 2000 until June 30, 2002 (the "DURATION"). The Guarantee
shall continue in full force and effect until all principal, premium and
interest (including any additional amounts required to be paid in accordance
with the Notes) and all other monies payable in respect of each Note issued by
the Issuer during the Duration of this Guarantee have been paid. The Guarantee
may be renewed, in Guarantor's sole discretion, for a specified duration in
order to continue to serve in full force and effect for Notes issued by the
Issuer after the Duration of this Guarantee. Renewal of the Guarantee will
require an amendment to this Guarantee to be issued by the Guarantor on or
before June 15, 2002. In the event that the Issuer is no longer an affiliated
company of Guarantor, this Guarantee shall automatically terminate and be of no
force or effect with respect to all Notes issued subsequent to such event. Any
such termination of this Guarantee shall not affect the rights of any holders of
Notes issued during the Duration while the Issuer was an affiliated company of
Guarantor.
This Guarantee is unsecured and unsubordinated and ranks pani passu
with all unsecured and unsubordinated indebtedness of the Guarantor other than
obligations that by mandatory operation of law would be given priority in a
dissolution of the Guarantor.
The Guarantor hereby waives (i) demand, notice and presentment,
promptness, diligence, notice of acceptance and all other notice, marshalling of
assets and set-off, together with any defense by reason of extension of time for
payment or other indulgence granted by the Issuing and Paying Agent, CDS or any
Holder, or any other defense or matter whatsoever which would otherwise release
the Guarantor, and (ii) any requirement that the Issuing and Paying Agent, CDS
or any Holder exhaust any right or take any action against the Issuer or any
collateral security before proceeding against the Guarantor. The Guarantor will
not exercise any rights which it may acquire by way of subrogation or by any
indemnity, reimbursement or other agreement until all outstanding Notes and all
of the obligations under this Guarantee shall have been paid in full. The
Guarantor agrees that, if at any time all or any part of any payment under this
Guarantee is or must be rescinded or returned by CDS, the Holder or the Issuing
and Paying Agent for any reason whatsoever (including, without limitation, the
insolvency, bankruptcy or reorganization of the Issuer or the Guarantor), then
such amount shall, for purposes of this Guarantee, to the extent that such
payment is or must be rescinded or returned, be deemed to have continued to be
outstanding, notwithstanding such payment hereunder to CDS, the Holder or the
Issuing and Paying Agent, as the case may be, and this Guarantee shall continue
to be effective or be reinstated, as the case may be, as to such amount, all as
though such application has not been made.
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Any payments to CDS or the Issuing and Paying Agent or to any Holder
(each Dealer and Holder is hereinafter referred to in this paragraph as a
"PAYEE") from time to time with respect to this Guarantee shall be in Canadian
dollars and shall be payable free and clear of and without deduction or
withholding for, or on account of, any and all present or future taxes, duties,
assessments, levies and other governmental charges of any nature whatsoever no
or hereafter imposed, levied, collected, withheld or assessed in The Netherlands
or in any other jurisdiction from which such payments are made or any territory
or political subdivision thereof, unless such deduction or withholding is
required by law ("FOREIGN TAXES"). If by operation of law or otherwise, Foreign
Taxes are required to be deducted or withheld from any amounts payable to a
Payee, the Guarantor agrees to pay such additional amounts to each Payee (the
"ADDITIONAL AMOUNTS") as may be necessary to ensure that the net amount actually
received by the Payee, after deduction of any Foreign Taxes imposed with respect
to the payment of such Additional Amounts, shall equal the amount the Payee
would have received if no Foreign Taxes had been deducted or withheld from such
payment- provided, however, that no Additional Amounts shall be so payable for
or on account of. (i) any Foreign Taxes which would not have been imposed but
for the fact that any Payee: (A) had a present or former personal or business
connection with The Netherlands or any other jurisdiction from which payments
are made, or any territory or political subdivision thereof (a "FOREIGN
JURISDICTION") other than the mere ownership of, or receipt of payment under,
the Notes; (B) presented such Notes for payment in any Foreign Jurisdiction
unless such Notes could not have been presented for payment elsewhere; (C)
presented a Note for payment more than fifteen (15) days after the date on which
such payment became due and payable or the date on which payment thereof is duly
provided for, whichever occurs later; or (D) did not provide to the Issuer
correct or sufficient information to avoid any withholding of taxes; (ii) any
estate, inheritance, gift, sale, transfer, personal property or similar tax,
assessment or other governmental charge; or (iii) any Foreign Taxes which are
payable otherwise than by withholding or deduction.
To the extent that the Guarantor or any of its respective properties,
assets or revenues may have or may hereafter become entitled to, or have
attributed to it, any right of immunity, on the grounds of sovereignty or other
similar grounds, from any legal action, suit or proceeding 'in connection with
or arising out of this Guarantee, from the giving of any relief thereunder, from
set-off or counterclaim, from the jurisdiction of any court, from service of
process, from attachment upon or prior to judgement, from attachment in aid of
execution of judgement, or from execution of judgement or other legal process or
proceeding for the giving of any relief or for the enforcement of any judgement,
in any j'urisdiction in which any proceeding may at any time be commenced, with
respect to its obligations, liabilities or any other matter under or arising out
of or in connection with this Guarantee, the Guarantor hereby irrevocably and
unconditionally waives, and agrees for the benefit of CDS and each Holder from
time to time of a Note, not to plead or claim any such immunity, and consents to
such relief and enforcement.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York, without regard to conflicts of law
provisions, except with respect to authorization and execution by or on behalf
of the Guarantor which are required to be governed by the laws of The
Netherlands. The Guarantor agrees that any legal action suit or proceeding
against it arising out of or related to this Guarantee may be brought in the
United States federal courts located in the Borough of Manhattan or the courts
of the State of New York located in the
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Borough of Manhattan and hereby irrevocably accepts and submits to the
non-exclusive jurisdiction of the aforementioned courts, in personam, generally
and unconditionally, with respect to any suit, action or proceeding in
connection with or arising out of this Guarantee for itself and its respective
properties, assets and revenues. The Guarantor agrees that a final unappealable
judgement in any action or proceeding arising out of or relating to this
Guarantee shall be conclusive and may be enforced in any other jurisdiction
otherwise having jurisdiction over the Guarantor by suit on the judgement or in
any other manner provided by law.
The Guarantor, hereby consents to accept service of process at the
offices of LeBouef, Lamb, Xxxxxx & XxxXxx Attention Xxxxxx Xxxxxxxxx, located at
000 Xxxx 00 xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and acknowledges that process
may be served in any suit or proceeding instituted in any Federal or State court
located in the Borough of Manhattan arising out of or relating to this
Guarantee, in accordance with legal procedures prescribed for such courts,
provided that in the case of such service of process upon the process agent, the
party effecting the service shall also deliver a copy thereof to Guarantor via
overnight counier service to the attention of Group Treasury at AEGON NV,
Xxxxxxxxxxxxxxx 00, 0000 XX, Xxx Xxxxx, Xxx Xxxxxxxxxxx. Nothing herein shall in
any way be deemed to limit the ability of CDS, the Issuing and Paying Agent or
the Holder to serve any such legal process, summons, notices and documents in
any other manner permitted by applicable law or to obtain jurisdiction over the
Guarantor or bring actions, suits or proceedings against the Guarantor in such
other jurisdictions, and in such manner, as may be permitted by applicable law.
The Hague, December 14, 2001
AEGON N.V.
By: /s/ X.X. xxx Xxxxxxx
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Name: X.X. xxx Xxxxxxx
Title: Senior Vice President and Group
Treasurer
