EXHIBIT 4.5
CONFORMED COPY
AEGON N.V.
as Guarantor
and
TRANSAMERICA FINANCE CORPORATION
as Issuer
and
BNY MIDWEST TRUST COMPANY
(successor in interest to ▇▇▇▇▇▇ Trust and Savings Bank)
as Trustee
__________________________________________________________
SUPPLEMENTAL INDENTURE
Dated as of January 12, 2004
to
INDENTURE
Dated as of July 1, 1982
__________________________________________________________
TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITION OF TERMS............................................3
ARTICLE II
THE PARTIES
SECTION 2.1 THE TRUSTEE....................................................4
SECTION 2.2 THE GUARANTOR..................................................4
ARTICLE III
THE GUARANTEE
SECTION 3.1 GUARANTEE......................................................4
SECTION 3.2 WAIVER OF NOTICE AND DEMAND....................................6
SECTION 3.3 WAIVER OF GUARANTOR'S RIGHTS...................................6
SECTION 3.4 NO DEFENSE; IMMUNITY SET-OFF; COUNTERCLAIM.....................6
SECTION 3.5 GUARANTEE OF PAYMENT...........................................7
SECTION 3.6 OBLIGATIONS NOT AFFECTED.......................................7
SECTION 3.7 SUBROGATION....................................................7
SECTION 3.8 INDEPENDENT OBLIGATIONS........................................8
ARTICLE IV
SUBORDINATION
SECTION 4.1 RANKING........................................................8
ARTICLE V
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 5.1 GUARANTOR MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.........8
SECTION 5.2 SUCCESSOR SUBSTITUTED..........................................8
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 RATIFICATION OF THE INDENTURE..................................9
SECTION 6.2 TRUSTEE NOT RESPONSIBLE FOR RECITALS...........................9
SECTION 6.3 TERMINATION....................................................9
SECTION 6.4 SUCCESSORS AND ASSIGNS.........................................9
SECTION 6.5 AMENDMENTS.....................................................9
SECTION 6.6 NOTICES........................................................9
SECTION 6.7 BENEFIT.......................................................10
SECTION 6.8 GOVERNING LAW; JURISDICTION...................................10
SECTION 6.9 SEPARABILITY..................................................10
SECTION 6.10 COUNTERPARTS..................................................11
SECTION 6.11 EFFECTIVENESS.................................................11
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SUPPLEMENTAL INDENTURE, dated as of January 12, 2004 (this
"Supplemental Indenture") among AEGON N.V., a Netherlands public company with
limited liability (the "Guarantor"), Transamerica Finance Corporation, a
Delaware corporation (the "Company"), and BNY Midwest Trust Company (successor
in interest to ▇▇▇▇▇▇ Trust and Savings Bank), a banking association duly
incorporated and registered under the laws of Illinois, as trustee (the
"Trustee").
WHEREAS, the Company has executed and delivered to the Trustee an
indenture dated as of July 1, 1982 (the "Indenture") providing for the issuance
by the Company from time to time of its unsecured senior debt securities
issuable in one or more series;
WHEREAS, the Company has issued, and the Trustee has authenticated and
delivered, three series of debt securities designated Zero Coupon Debentures due
September 1, 2007, Zero Coupon Debentures due March 1, 2010 and Zero Coupon
Debentures due September 1, 2012 (collectively, the "Notes");
WHEREAS, the Company is the obligor with respect to the Notes;
WHEREAS, the Guarantor is willing to provide the Guarantee (as defined
herein) on the terms and subject to the conditions set forth herein;
WHEREAS, the Company proposes to amend and supplement the Indenture in
certain respects;
NOW THEREFORE, in consideration of the premises, the parties hereby
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITION OF TERMS.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used
in this Supplemental Indenture;
(b) a term defined anywhere in this Supplemental Indenture has the
same meaning throughout this Supplemental Indenture;
(c) the singular includes the plural and vice versa; and
(d) the Article and Section headings herein and the Table of
Contents are for convenience of reference only and do not affect the
construction of this Supplemental Indenture.
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ARTICLE II
THE PARTIES
SECTION 2.1 THE TRUSTEE.
The Guarantee shall be held by the Trustee for the benefit of the
Holders, and the Trustee shall not transfer the Guarantee to any Person except
with a simultaneous transfer of the Notes carried out in accordance with the
Indenture.
SECTION 2.2 THE GUARANTOR.
The Guarantor is hereby made a party to the Indenture.
ARTICLE III
THE GUARANTEE
SECTION 3.1 GUARANTEE.
(a) The Guarantor hereby fully and unconditionally guarantees to
each Holder, and to the Trustee on behalf of each Holder, the due and punctual
payment (and not merely the collection) of the principal of (premium, if any)
and interest on the Notes, and all other obligations of the Company under the
Indenture, when and as the same shall become due and payable whether at
maturity, by acceleration, call for redemption or otherwise, according to the
terms thereof and the Indenture without any requirement that a Holder or Paying
Agent first proceed against the Company (the "Guarantee"). The obligations under
the Guarantee shall be absolute and unconditional for the duration of the
Guarantee, irrespective of (i) any invalidity, irregularity or unenforceability
of the Notes, (ii) the absence of any action to enforce the same or any release
or amendment or waiver of any term of any other guarantee of, all or of any of
the Notes, any waiver or consent by the Holder of such Note or by the Trustee or
either of them with respect to any provisions thereof or of the Indenture, (iii)
the obtaining of any judgment against the Company or any action to enforce the
same or any other circumstances which might otherwise constitute a legal or
equitable discharge or defense of a guarantor; provided, however, that
notwithstanding the foregoing, no such release, amendment, waiver, consent or
judgment shall, without the consent of the Guarantor, increase the principal
amount of such Note or increase the rate or rates of interest thereon or
increase any premium payable upon redemption thereof, or alter the Stated
Maturity thereof or increase the principal amount of any Original Issue Discount
Security that would be due and payable upon a declaration of acceleration of
maturity thereof. The Guarantee shall continue in full force and effect until
the principal of (premium, if any) and interest in respect of all outstanding
Notes shall have been paid.
(b) The Guarantor will make all payments pursuant to the Guarantee
without withholding or deduction for, or on account of, any present or future
taxes, duties, assessments, levies and other governmental charges of any nature
whatsoever now or hereafter imposed or established by or on behalf of the
Netherlands or any authority in the Netherlands, unless such deduction or
withholding is required by law (a "Netherlands Tax"). In the event any
Netherlands Tax is so imposed or established on any amounts payable under the
Guarantee, the Guarantor agrees to pay such additional amounts to each Holder
(the "Additional Amounts") as may be necessary in order that the net amounts
receivable by each Holder after any payment,
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withholding or deduction in respect of such Netherlands Tax shall equal the
respective amounts of principal (premium, if any) and interest, which would have
been receivable in respect of the Notes in the absence of such payment,
withholding or deduction; PROVIDED, HOWEVER, that the amounts with respect to
the Netherlands Tax shall be payable only to Holders that are not residents in
the Netherlands for purposes of its tax laws; AND PROVIDED FURTHER, that the
Guarantor shall not be required to make any payment of Additional Amounts for or
account of:
A. any tax, assessment or other governmental charge which would
not have been imposed but for the existence of any present or
former connection between such Holder (or between a fiduciary,
settlor, beneficiary, member or shareholder of, or possessor
of a power over such Holder, if such Holder is an estate,
trust, partnership or corporation) and the Netherlands, or any
political subdivision or territory or possession thereof or
therein or area subject to its jurisdiction, including,
without limitation, such Holder (or such fiduciary, settlor,
beneficiary, member, shareholder or possessor) being or having
been a citizen or resident thereof or treated as a resident
thereof or being or having been present or engaged in a trade
or business therein or having or having had a permanent
establishment therein;
B. any estate, inheritance, gift, sales, transfer, personal
property or similar tax, assessment or other governmental
charge;
C. any tax, assessment or other governmental charge which is
payable other than by withholding from payments of (or in
respect of) principal of (premium, if any) or any interest on,
the Notes;
D. any tax, assessment or other governmental charge required to
be withheld by any paying agent from any payment of principal
of (premium, if any) or any interest on, any Note, if such
payment can be made without such withholding by any other
paying agent;
E. any tax, assessment or other governmental charge which would
not have been imposed or withheld if such Holder had made a
declaration of nonresidence or other similar claim for
exemption or presented any applicable form of certificate,
upon the making or presentation of which that Holder would
either have been able to avoid such tax, assessment or charge
or to obtain a refund of such tax, assessment or charge;
F. any tax, assessment or other governmental charge which would
not have been imposed but for the presentation of a Note
(where presentation is required) for payment on the date more
than 30 days after the date on which such payment became due
and payable or more than 30 days after the date on which
payment thereof was duly provided for, whichever occurred
later;
G. any withholding or deduction imposed on a payment under the
Guarantee which is required to be made pursuant to a European
Union directive on the taxation of savings or any law
implementing or complying with, or introduced in order to
conform to, such directive; or
H. any combination of items above;
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nor shall Additional Amounts be paid with respect to any payment of the
principal of (premium, if any) or any interest on any Note pursuant to the
Guarantee to any such Holder who is a fiduciary or a partnership or a beneficial
owner who is other than the sole beneficial owner of such payment to the extent
a beneficiary or settlor with respect to such fiduciary or a member of such
partnership or a beneficial owner would not have been entitled to such
Additional Amount had it been the Holder of the Note.
Whenever in the Notes there is a reference, in any context, to the
payment of the principal of (premium, if any) or interest, or in respect of, any
Note such payment shall be deemed to include the payment of Additional Amounts
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect of such payment pursuant to the provisions hereof or thereof
and express mention of the payment of Additional Amounts (if applicable) in any
provision hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
SECTION 3.2 WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives the benefits of diligence, presentment,
demand of payment, any requirement that the Trustee or any of the Holders
exhaust any right or take any action against the Company or any other Person,
filing of claims with a court in the event of insolvency or bankruptcy of the
Company, protest or notice with respect to such Note or the indebtedness
evidenced thereby; PROVIDED, HOWEVER, that the Guarantor receives prompt written
notice from the Trustee or any Holder of any failure by the Company to make any
payment of principal (premium, if any) or interest or any sinking fund or
analogous payment.
SECTION 3.3 WAIVER OF GUARANTOR'S RIGHTS.
The Guarantor will not exercise any rights which it may acquire by way
of subrogation or by any indemnity, reimbursement or other agreement until the
principal (premium, if any) and interest in respect of all outstanding Notes
shall have been paid.
SECTION 3.4 NO DEFENSE; IMMUNITY SET-OFF; COUNTERCLAIM.
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, any suit, process or proceeding in
connection with or arising out of the 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 judgment from
attachment in aid of execution of judgment, or from execution of judgment or
other legal action, suit, 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 the Guarantee,
the Guarantor hereby irrevocably and unconditionally waives and agrees, for the
benefit of each Holder, from time to time, not to plead or claim any such
immunity, set-off or counterclaim.
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SECTION 3.5 GUARANTEE OF PAYMENT.
This Supplemental Indenture creates a guarantee of payment and not of
collection.
SECTION 3.6 OBLIGATIONS NOT AFFECTED.
The obligations of the Guarantor under this Supplemental Indenture
shall in no way be affected or impaired by reason of the occurrence from time to
time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Company of any express or implied
agreement, covenant, term or condition relating to the Notes to be performed or
observed by the Company;
(b) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Notes, or any
action on the part of the Company granting indulgence or extension of any kind;
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Company or any of the assets of
the Company;
(d) any invalidity of, or defect or deficiency in, the Notes;
(e) the settlement or compromise of any obligation of the
Guarantor under the Guarantee or incurred under the Guarantee; or
(f) any other circumstance whatsoever that may otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 3.6 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 3.7 SUBROGATION.
The Guarantor shall be subrogated to all rights, if any, of the Holders
of the Notes against the Company in respect of any amounts paid to such Holders
by the Guarantor under this Supplemental Indenture; PROVIDED, HOWEVER, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Supplemental Indenture, if, at the time of any
such payment, any amounts are due and outstanding under this Supplemental
Indenture. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
benefit of the Holders and to pay over such amount to the Holders.
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SECTION 3.8 INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Company with respect to the Notes, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
payments with respect to the Guarantee pursuant to the terms of this
Supplemental Indenture notwithstanding the occurrence of any event referred to
in subsections (a) through (f), inclusive, of Section 3.6 hereof.
ARTICLE IV
SUBORDINATION
SECTION 4.1 RANKING.
The Guarantee will constitute an unsecured and senior obligation of the
Guarantor and will rank 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.
ARTICLE V
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 5.1 GUARANTOR MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Guarantor shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(a) the Person formed by such consolidation or into which the
Guarantor is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Guarantor substantially as an
entirety (for purposes of this Article V, a "Successor Guarantor") shall
expressly assume, by an indenture supplemental to the Indenture, executed and
delivered to the Trustee, in form and substance reasonably satisfactory to the
Trustee, the Guarantor's obligations under this Supplemental Indenture and the
performance or observance of every covenant of this Supplemental Indenture on
the part of the Guarantor to be performed or observed; and
(b) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing.
SECTION 5.2 SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Guarantor with, or merger of the
Guarantor into, any other Person or any conveyance, transfer or lease of all or
substantially all of the properties and assets of the Guarantor as an entirety
in accordance with Section 5.1, the Successor Guarantor shall succeed to and be
substituted for, and may exercise every right and power of, the Guarantor under
this Supplemental Indenture with the same effect as if such Successor Guarantor
had been
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named as the Guarantor herein, and thereafter, the Guarantor shall be relieved
of all obligations and covenants under this Supplemental Indenture.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 RATIFICATION OF THE INDENTURE.
Except as hereby expressly amended, the Indenture is in all respects
ratified and confirmed and all terms, provisions and conditions thereof shall be
and remain in full force and effect.
SECTION 6.2 TRUSTEE NOT RESPONSIBLE FOR RECITALS.
The recitals herein contained are made by the Guarantor and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
Supplemental Indenture.
SECTION 6.3 TERMINATION.
This Supplemental Indenture shall terminate once the principal
(premium, if any) and interest of all outstanding Notes have been paid.
SECTION 6.4 SUCCESSORS AND ASSIGNS.
The Guarantee and other obligations of the Guarantor contained in this
Supplemental Indenture shall bind the successors, assigns, receivers, trustees
and representatives of the Guarantor and shall inure to the benefit of the
Holders then outstanding.
SECTION 6.5 AMENDMENTS.
This Supplemental Indenture may only be amended in accordance with
Section 9.02 of the Indenture.
SECTION 6.6 NOTICES.
All notices provided for in this Supplemental Indenture shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Trustee, at the mailing address of the Trustee
set forth below:
BNY Midwest Trust Company
Corporate Finance Administration
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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(b) If given to the Guarantor, at the mailing address of the
Guarantor set forth below (or such other address as the
Guarantor may give notice of to the Holders):
▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Attn: Group Treasury
(c) If given to any Holder, at the address set forth in the
Security Register.
All such notices shall be deemed to have been given when received in
person, transmitted by facsimile with receipt confirmed, or mailed by first
class mail, postage prepaid except that if a notice or other document is refused
delivery or could not be delivered because of a change of address, of which no
notice was given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
SECTION 6.7 BENEFIT.
Nothing in this Supplemental Indenture or in the Notes, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Supplemental Indenture.
SECTION 6.8 GOVERNING LAW; JURISDICTION.
This Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of California except (i) with respect to
Article III hereof and the Guarantee, which shall be governed by and construed
in accordance with the laws of the State of New York, without regard to
conflicts of law provisions and (ii) with respect to authorization and execution
of this Supplemental Indenture 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 Supplemental Indenture 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 the Guarantee for itself and its
respective properties, assets and revenues. The Guarantor agrees that a final
unappealable judgment in any action or proceeding arising, out of or relating to
this Supplemental Indenture 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.
SECTION 6.9 SEPARABILITY.
In case any one or more of the provisions contained in this
Supplemental Indenture shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Supplemental Indenture, but this
Supplemental Indenture shall be construed as if such invalid or illegal or
unenforceable provisions had never been contained herein.
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SECTION 6.10 COUNTERPARTS.
This Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original, but such counterparts shall
together constitute one and the same instrument.
SECTION 6.11 EFFECTIVENESS.
This Supplemental Indenture shall become a legally effective and
binding instrument upon the execution and delivery hereof by all parties hereto.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the day and year first above written.
AEGON N.V.
By: /s/ J.B.M. Streppel
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Name: J.B.M. Streppel
Title: member of the Executive Board
TRANSAMERICA FINANCE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
BNY MIDWEST TRUST COMPANY
as Trustee
By: /s/ ▇. ▇▇▇▇▇▇
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Name: ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
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