EXHIBIT 10.6
[LOGO] AEGON
INSURANCE GROUP
GUARANTY
This GUARANTY (the "Guaranty"), dated as of April 26, 2001, is executed by AEGON
N.V., a company duly organized and validly existing under the laws of The
Netherlands ("Guarantor") in favor of (i) BANK OF AMERICA, N.A., a national
banking association, as administrative agent for itself and the other banks who
are now or may hereafter become party to the Short Term Revolving Credit
Agreement and the Long Term Revolving Credit Agreement (each as hereinafter
defined) or party to either such agreement (in such capacity as the
administrative agent for both the Short Term Revolving Credit Agreement and the
Long Term Revolving Credit Agreement, the "Administrative Agent" and the banks
who are now or may hereafter become a party to either the Short Term Revolving
Credit Agreement or the Long Term Revolving Credit Agreement, herein the
"Banks") and (ii) the Banks.
Recitals
Transamerica Finance Corporation, a Delaware corporation ("Borrower"), as
borrower, the banks named therein, Banc of America Securities LLC, as lead
arranger and book manager, and BANK OF AMERICA, N.A., as agent are, concurrently
herewith, entering into that certain Revolving Credit Agreement dated as of
April 26, 2001 (as the same may hereafter be amended, the "Short Term Revolving
Credit Agreement"). Capitalized terms not otherwise defined herein shall have
the same meanings as set forth in the Short Term Revolving Credit Agreement.
Transamerica Corporation, a Delaware corporation and Borrower, together as the
borrowers, the banks named therein, the Chase Manhattan Bank as documentation
agent and Bank of America National Trust and Savings Association (now known as
Bank of America, N.A.), are parties to that certain Revolving Credit Agreement
dated as of June 27, 1997 (as the "Agreement") (the Long Term Revolving Credit
Agreement together with the Short Term Revolving Credit Agreement are herein
referred to as the "Credit Agreements").
The execution and delivery of this Guaranty is a condition to Bank of America,
N.A., individually and as agent, and the other Banks that are or are to be
parties to the Short Term Revolving Credit Agreement, extending credit to the
Borrower under the terms of the Short Term Credit Agreement. Borrower has
requested that Guarantor issue this Guaranty.
Now this Guaranty witnesses and it is hereby declared as follows:
1. The Guarantor, a corporation duly incorporated under the laws of The
Netherlands, hereby unconditionally and irrevocably guaranties to the
Administrative Agent, for the benefit of itself and the Banks, he prompt
and punctual payment (and not merely the collection) of the Guaranteed
Indebtedness, when and as the same shall become due and payable. The term
"Guaranteed Indebtedness", as used herein, means all obligations,
indebtedness, and liabilities of Borrower to: (i) the Administrative Agent
and/or any Bank arising under the Long Term Revolving Credit Agreement and
the Notes (as defined in the Long Term Revolving Credit Agreement) and (ii)
the Administrative Agent and/or Bank arising under the Short Term
Revolving Credit Agreement and the Notes (as defined in the Short Term
Revolving Credit Agreement),
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whether any of such obligations, indebtedness, and liabilities now existing
or hereafter arising, whether fixed, contingent, liquidated, or
unliquidated. The term "Guaranteed Indebtedness": (i) includes, without
limitation, all post-petition interest, fees, costs, and expenses
(including attorneys' fees and expenses) whether or not allowed under any
bankruptcy, insolvency, or other similar law and (iii) excludes the
Excluded Amounts, as defined in paragraph 3 below.
2. The liability of the Guarantor under this Guaranty shall be unconditional
and irrevocable for the duration of this Guaranty, as hereinafter set
forth, irrespective of (i) any lack of validity or enforceability of the
Guaranteed Indebtedness, (ii) any change of the time, manner or place of
payment, or any other term, of the Guaranteed Indebtedness, (iii) any law,
regulation or order of any jurisdiction affecting any term of the
Guaranteed Indebtedness or any Bank's rights with respect thereto, and (iv)
any other circumstance which might otherwise constitute a defense available
to, or a discharge of, the Borrower or the Guarantor.
3. This Guaranty shall continue in full force and effect until the
indefeasible payment of all principal, premium and interest and all other
monies payable in respect of Guaranteed Indebtedness: provided that (a) if
the Guarantor provides the Administrative Agent written notice at the
address below in the manner described in Section 10.1 of the Short Term
Revolving Credit Agreement that the Borrower is no longer an affiliated
company of Guarantor, then on the date that is five (5) Business Days after
the date the Administrative Agent receives such notice (the Expiration
Date"), the Guarantor's obligations hereunder shall terminate and be of no
force or effect with respect to any amounts owed by the Borrower in respect
of principal advanced after the Expiration Date and (b) this Guaranty shall
not extend to any amount owed by the Borrower in respect of any principal
advanced under a Credit Agreement if such principal is advanced after the
"Termination Date" defined and determined in accordance with such Credit
Agreement as the same may be extend thereunder (any such amounts which are
not guaranteed hereunder pursuant to the forgoing clauses (a) and (b) are
herein the "Excluded Amounts"). Any termination of this Guaranty under the
forgoing clause (a) and the limitation on the amounts guaranteed hereby set
forth in the forgoing clause (b) shall not affect the rights of the
Administrative Agent or any Bank with respect to all other Guaranteed
Indebtedness. The notice of termination delivered under this paragraph 3
shall be delivered to the Administrative Agent and Bank of America, N.A.,
000 Xxxx Xxxxxx, 0000 Xxxxx, Xxxxxx, XX 00000, Attention: Xxxxxxxxx
Xxxxxxxx, Phone: (000) 000-0000 and Fax: (000) 000-0000 and shall not be
deem to be received on a day unless such notice is received by 8:00 A.M.,
San Francisco California time on a Business Day and if such notice is
received after such time, it shall be deemed to be received on the next
Business Day.
4. This Guaranty 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.
5. 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 Administrative Agent or any
Bank, or any other defense or matter whatsoever which would otherwise
release the Guarantor, and (ii) any requirement that Administrative Agent
or any Bank exhaust any right or take any action against the Borrower or
any collateral security before proceeding against the Guarantor. The
Guarantor will not exercise any rights which it may acquire by way of
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subrogation or by any indemnity, reimbursement or other agreement until all
of the Guaranteed Indebtedness and all of the obligations under this
Guaranty shall have been paid in full. The Guarantor agrees that, if at any
time all or any part of any payment under this Guaranty is or must be
rescinded or returned by Administrative Agent or any Bank for any reason
whatsoever (including, without limitation, the insolvency, bankruptcy or
reorganization of the Borrower or the Guarantor), then such amount shall,
for purposes of this Guaranty, 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 the Administrative Agent of any
Bank, as the case may be, and this Guaranty shall continue to be effective
or be reinstated, as the case may be, as to such amount, all as though such
application had not been made.
6. In the event of default by Borrower in payment of the Guaranteed
Indebtedness, or any part thereof, when such Guaranteed Indebtedness
becomes due, whether by its terms, by acceleration, or otherwise, Guarantor
shall promptly, on demand, pay the amount due thereon to the Administrative
Agent. In the event that amounts received by the Administrative Agent on
account of the Guarantor's obligations hereunder are not sufficient to pay
in full in cash all of the Guaranteed Indebtedness, the amounts received
by the Administrative Agent shall first be applied as payment of the
accrued and unpaid fees of the Administrative Agent under the Credit
Agreements and then to al other unpaid or unreimbursed Guaranteed
Indebtedness (including reasonable attorneys' fees and expenses) owing to
the Administrative Agent in its capacity as Administrative Agent and as the
agent under each Credit Agreement only. Any amount remaining after the
applications described in the preceding sentence shall be distributed to
the Banks on a pro rata basis, calculated based on the principal amount of
the Guaranteed Indebtedness owing to each in relation to amount of all of
the Guaranteed Indebtedness. If at any time payment, in whole or in part,
of any amount received and distributed hereunder is rescinded or must
otherwise be restored or returned by the Administrative Agent as a
preference, fraudulent conveyance or otherwise under any bankruptcy,
insolvency or similar law, then each Bank receiving any portion of such
amounts, by accepting the benefits of this Guaranty, agrees to return the
portion of such amounts it has received to the Administrative Agent, on
demand. The Administrative Agent is acting as agent hereunder under the
terms of the agency provisions of each of the Credit Agreements and shall
be entitled to the benefits and protections provided for under such
provisions in connection with its role as the Administrative Agent
hereunder.
7. Any payments to the Administrative Agent from time to time with respect to
this Guaranty shall be in United States 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 now 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 the Administrative Agent, the Guarantor agrees to pay such
additional amounts to the Administrative Agent (the "Additional Amounts")
as may be necessary to ensure that the net amount actually received by the
Administrative Agent, after deduction of any Foreign Taxes imposed with
respect to the payment of such Additional Amounts, shall equal the amount
the Administrative Agent 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
Bank: (A) had a
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present or former business in 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 Borrower 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.
8. 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 Guaranty, 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
judgment, from attachment in aid of execution of judgment, or from
execution of judgment or other legal process or proceeding for the giving
of any relief or for the enforcement of any judgment, 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 Guaranty, the Guarantor hereby irrevocably and
unconditionally waives, and agrees for the benefit of the Administrative
Agent and each Bank, not to plead or claim any such immunity, and consents
to such relief and enforcement.
9. This Guaranty embodies the final, entire agreement of Guarantor,
Administrative Agent, and the Banks with respect to Guarantor's guaranty of
the Guaranteed Indebtedness.
10. This Guaranty shall be governed by and construed in accordance with the
laws of the State of New York, U.S.A. (without regard to the conflicts of
laws provisions thereof other than Section 5 - 1401 of New York's General
Obligations Laws), 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 Guaranty 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 Guaranty for itself and its
respective properties, assets and revenues. To the fullest extent permitted
by applicable law, Guarantor hereby irrevocably and expressly waives all
right to a trial by jury in any action, proceeding, or counterclaim
(whether based upon contract, tort or otherwise) arising out of or relating
to this Guaranty or the transactions contemplated hereby or the actions of
Administrative Agent or any Bank in the negotiation, administration, or
enforcement thereof. The Guarantor agrees that a final unappealable
judgment in any action or proceeding arising out of or relating to this
Guaranty shall be conclusive and may be enforced in any other jurisdiction
otherwise having jurisdiction over the Guarantor by suit on the judgment or
in any other manner provided by law.
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11. If any claim arising under or related to this Guaranty is reduced to a
judgment in a currency other than the currency in which the Guaranteed
Indebtedness is payable, the judgment shall be for the greater of (i) the
equivalent in the currency in which the judgment is denominated of the
amount of the claim as denominated in the currency in which the Guaranteed
Indebtedness is payable, determined as of the date or dates the portion of
the Guaranteed Indebtedness related to such claim arose or was incurred by
the Borrower or (ii) such equivalent in the currency in which the judgment
is denominated determined as of the date of judgment. The equivalent
amount of the foreign judgment currency shall be calculated at the spot
rate for the purchase of that currency with the currency in which the
Guaranteed Indebtedness is payable quoted by the Administrative Agent in
New York, New York, at approximately 8:00 A.M. on the date for
determination specified above.
12. Guarantor shall indemnify the Administrative Agent and the Banks against
and hold the Administrative Agent and the Banks harmless from all loss and
damage resulting from any change in exchange rates between the date any
claim is reduced to judgment and the date of payment (or, in the case of
partial payments, the date of each partial payment) thereof by Guarantor.
This indemnity shall constitute an obligation separate and independent from
the Guaranteed Indebtedness, shall give rise to a separate and independent
cause of action, shall apply irrespective of any indulgence granted by the
Administrative Agent or any Bank from time to time and shall continue in
full force and effect notwithstanding any judgment or order for a
liquidated sum in respect of any amount due hereunder or under any judgment
or order.
13. No amendment or waiver of any provision of this Guaranty or consent to any
departure by the Guarantor therefrom shall in any event be effective
unless the same shall be in writing and signed by Administrative Agent,
acting at the direction of the required number of Banks prescribed by the
Short Term Revolving Credit Agreement or if the Short Term Revolving
Credit Agreement is no longer in effect, the required number of Banks
prescribed by the Long Term Revolving Credit Agreement.
14. This Guaranty is for the benefit of Administrative Agent, the Banks, and
their successors and assigns.
15. The Guarantor hereby consents to accept service of process at the office of
LeBoeuf, 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 Guaranty, 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 N.V., Mariahoeveplein 50, 2591 TV, The Hague, The
Netherlands. Nothing herein shall in any way be deemed to limit the ability
of the Administrative Agent or any Bank 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.
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Xxx Xxxxx, Xxxxx 00, 0000
XXXXX N.V.
By: /s/ J.B.M. Streppel
---------------------------------
J.B.M. Streppel
MEMBER EXECUTIVE BOARD
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