EXHIBIT 10.3
[LOGO] AEGON
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Exhibit G
GUARANTY
This GUARANTY ("the Guaranty"), dated as of June 12, 2002, 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 a 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
Agreement or the Long Term Revolving Agreement, herein the "Banks")and (ii) the
Banks.
Recitals
Transamerica Finance Corporation, a Delaware corporation ("Borrower"), as
borrower, the banks named therein and BANK OF AMERICA, N.A., as administrative
agent, are, concurrently herewith, entering into that certain 364 Day Revolving
Credit Agreement dated as of June 12, 2002 (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.
Borrower, the banks named therein and BANK OF AMERICA, N.A., as administrative
agent, are parties to that certain Multi-Year Revolving Credit Agreement dated
as of June 12, 2002 (as the same may hereafter be amended, the "Long Term
Revolving Credit 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 and/or the Long Term
Revolving Credit Agreement, extending credit to the Borrower under the terms of
such agreements. 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, the
prompt and punctual payment (and not merely the collection) of the
Guaranteed Indebtedness, when and as the sane 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
any Bank arising under the Short Term Revolving Credit Agreement and
the Notes (as defined In the Short Term Revolving Credit Agreement),
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
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other similar law and (ii) 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 at Bank of
America, N.A., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, XX 00000,
Attention: Xxxxxx Xxxxxx, Phone: (000) 000-0000 and Fax: (000) 000-0000
and shall not be deemed to be received on a day unless such notice is
received by 6:00 A.M., Chicago, Illinois 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 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
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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 or
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 all
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 the 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 present or former 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
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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.
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
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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.
I5. The Guarantor hereby consents to accept service of process at the
offices of Xxxxx & Overy, located at 0000 Xxxxxx xx xxx Xxxxxxxx, 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., XXXXXxxxxx 00, 0000 XX, Xxx Xxxxx, Xxx
Xxxxxxxxxxx. 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.
The Hague, June 12, 2002
AEGON N.V.
/s/ J.B.M. Streppel
By: J.B.M. Streppel
Member Executive Board
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