EXHIBIT 10.9
[LOGO]
AEGON
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 December 31, 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 December 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 pari
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 jurisdiction 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
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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 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 00xx 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 courier service to the attention of Group Treasury at AEGON NV,
XXXXXxxxxx 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, June 14, 2002 - AEGON N.V.
By: /s/ J.B.M. Streppel
----------------------------
Name: J.B.M. Streppel
Title: Member Executive Board
KKN/TA CP
