Exhibit 4(i)
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT, dated as of December 30, 2002, between XXXX
XXXXXXX FINANCIAL SERVICES, INC., a Delaware corporation (the "Company") and
XXXX XXXXXXX VARIABLE LIFE INSURANCE COMPANY, a Massachusetts corporation
("JHVLICO").
W I T N E S S E T H:
WHEREAS, JHVLICO is or will be the issuer of guarantee period interests,
the offer and sale of which has been or will be registered by JHVLICO on Form
S-1 or (together with the Company as co-registrant) on Form S-3 under the
Securities Act of 1933 (all such registered interests as are currently
outstanding or issued in the future being referred to herein as "Guarantee
Period Interests"); and
WHEREAS, the guarantee made by the Company in this Agreement (the
"Guarantee") will benefit purchasers of Guarantee Period Interests and, thereby,
indirectly benefit JHVLICO's business; and
WHEREAS, the Guarantee is also intended to enable JHVLICO to cease filing
certain periodic reports under the Securities Exchange Act of 1934 ("1934 Act"),
which will relieve JHVLICO of costs and inconvenience; and
WHEREAS, as the indirect sole owner of all of JHVLICO's outstanding stock,
the Company also will indirectly benefit from the benefits to JHVLICO referred
to above; and
WHEREAS, the Guarantee is necessary to induce JHVLICO to take such steps as
may be necessary or appropriate to enable JHVLICO to cease filing the
above-mentioned reports under the 1934 Act;
NOW, THEREFORE, in consideration of the premises, the parties hereby agree
as follows:
SECTION 1. Guarantee. The Company hereby unconditionally and
irrevocably guarantees, as principal and not merely as surety, the full and
punctual payment when due of all amounts payable by JHVLICO from a Guarantee
Period to any holder, owner, annuitant, or beneficiary under the annuity
contract ("Contract") creating such interest, to any successor, legatee, heir,
or assignee or any such person, to any other account or option under the
Contract, or to any other account of any such person (all of the foregoing
persons, accounts and options being referred to herein as "Payees"). For this
purpose, the amount payable by JHVLICO to a
Payee from a Guarantee Period (a) upon a full or partial transfer, withdrawal,
surrender, maturity, annuitization, loan or other similar removal of assets will
be the net amount of assets so removed, after (i) increase for any interest or
positive market value adjustment that would be credited to a Payee under the
terms of the Contract for the transaction in question and (ii) reduction for any
interest, fees, charges, outstanding loans, and negative market value
adjustments that would be charged against a Payee under the terms of the
Contract for the transaction in question; or (b) upon payment of any other
amount as a consequence of the death of any owner, holder, or annuitant under a
Contract, an amount equal to the Contract's account value then allocated to one
or more Guarantee Periods, increased by any accrued but uncredited interest
attributable thereto and any positive market value adjustment that would have
been payable upon any surrender of the Contract at that time.
SECTION 2. Guarantee Absolute. The Company agrees that the Guarantee
contained in this Guarantee Agreement is a guarantee of payment and not of
collection or collectibility, and that the obligations of the Company hereunder
shall be primary, absolute and unconditional and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of JHVLICO under the
Contracts, or by operation of law or otherwise;
(ii) any modification, amendment, supplement, endorsement or rider to
the Contracts;
(iii) any change in the corporate existence, structure or ownership of
JHVLICO, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting JHVLICO or its assets or any
resulting release or discharge of any obligation of JHVLICO
contained in the Contracts;
(iv) the existence of any defense, claim, set-off or other rights
which the Company may have at any time against JHVLICO, or any
other person, whether in connection herewith or any unrelated
transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory
counterclaim or with respect to obligations of the Company other
than obligations hereunder;
(v) any invalidity or unenforceability relating to or against
JHVLICO for any reason of the Contracts, or any provision of
applicable law or regulation purporting to prohibit the payment
by JHVLICO of any amount payable by JHVLICO under the Contracts;
or
(vi) any other act or omission to act or delay of any kind by JHVLICO
or any other person or any other circumstance whatsoever which
might, but for the provisions of this paragraph, constitute a
legal or equitable discharge of the Company's obligations
hereunder.
SECTION 3. Representations and Warranties. Each party to this
Guarantee Agreement hereby represents and warrants that:
(a) Authorization; No Contravention. The execution, delivery
and performance by that party of this Guarantee Agreement
is within that party's powers, have been duly authorized by
all necessary action, require no action by or in respect
of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default
under, any provision of applicable law or regulation, as
amended from time to time, or the charter or by-laws of
that party or of any agreement, judgment, injunction,
order, decree or other instrument binding upon that party
or result in or require the creation or imposition of any
lien on any asset of that party.
(b) Binding Effect. This Guarantee Agreement constitutes a
valid and binding agreement of that party.
SECTION 4: Acceptance by JHVLICO. JHVLICO hereby accepts this
Guarantee Agreement on its own behalf, and the parties also agree and
acknowledge that the Payees are third party beneficiaries hereof and that any
Payee may enforce the Guarantee directly against the Company, subject to no
preconditions other than failure by JHVLICO to pay when due any guaranteed
amount.
SECTION 5. Enforcement of Guarantee. Without limiting any other
provision of this Guarantee Agreement, in no event shall any Payee have any
obligation to proceed against JHVLICO or any other person or property before
seeking satisfaction from the Company.
SECTION 6. Waiver. Without limiting any other provision of this
Guarantee Agreement, the Company hereby irrevocably waives promptness,
diligence, or notice of acceptance hereof, presentment, demand, protest and any
and all other notice not provided for herein and any requirement that at any
time a Payee or any other person exhaust any right or take any action against
JHVLICO and any other circumstances whatsoever that might otherwise constitute a
legal or equitable discharge, release or defense of the Company or that might
otherwise limit recourse against the Company.
SECTION 7. Waiver of Subrogation. The Company irrevocably waives any
and all rights to which it may be entitled, by operation of law or otherwise,
upon making any payment hereunder to be subrogated to the rights of the Payee
against JHVLICO with respect to such payment or otherwise to be reimbursed,
indemnified or exonerated by JHVLICO in respect thereof.
SECTION 8. Compliance with Regulation S-X. This Guarantee Agreement
shall be interpreted in such a manner that the Guarantee will be "full and
unconditional" as
those words are used in Rule 3-10 of Regulation S-X of the Securities and
Exchange Commission, as currently in effect, and Payees shall automatically have
any additional rights and remedies against the Company that may be necessary to
yield that result.
SECTION 9. No Waiver; Remedies. No failure on the part of a Payee to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 10. Continuing Guarantee; Reinstatement in Certain
Circumstances. The Guarantee contained in this Guarantee Agreement is a
continuing guarantee and the Company's obligations hereunder shall (i) remain in
full force and effect until the indefeasible payment in full of all amounts
payable by JHVLICO that are guaranteed hereby, and (ii) be binding upon the
Company and its successors and assigns. If at any time any payment of any amount
paid by JHVLICO from the Guarantee Periods is rescinded or must otherwise be
restored or returned upon the insolvency, bankruptcy or reorganization of
JHVLICO or otherwise, the Company's obligations hereunder with respect to such
payment shall be reinstated as though such payment had been due but not made at
such time.
SECTION 11. Stay of Time Of Payment. Without limiting any other
provision of this Guarantee Agreement, if the time for payment of any amount
payable by JHVLICO under a Contract is stayed upon the insolvency, bankruptcy or
reorganization of JHVLICO, all such amounts otherwise subject to payment under
the terms of this Guarantee Agreement shall nonetheless be payable by the
Company hereunder forthwith on demand by the Payee.
SECTION 12. Governing Law. This Guarantee Agreement shall be governed
by, and construed in accordance with, the laws of the Commonwealth of
Massachusetts.
SECTION 13. Severability. Any provision of this Guarantee Agreement
which is illegal, invalid, prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such illegality,
invalidity, prohibition or unenforceability without invalidating the remaining
provisions hereof and any such illegality, invalidity, prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 14. Entire Agreement. This Guarantee Agreement embodies the
entire agreement of the Parties with respect to the subject matter hereof and
supersedes any prior written or oral agreements and understandings relating to
the subject matter hereof.
IN WITNESS WHEREOF, each party has caused this Guarantee Agreement to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
XXXX XXXXXXX FINANCIAL SERVICES, INC.
By: ___________________________
Name:
Title: Commonwealth of Massachusetts
Suffolk, ss. December__, 2002
As subscribed and affirmed to
before me on this date.
------------------
Notary Public
My commission expires:
XXXX XXXXXXX VARIABLE LIFE
INSURANCE COMPANY
By: ___________________________
Name:
Title:
Commonwealth of Massachusetts
Suffolk, ss. December__, 2002
As subscribed and affirmed to
before me on this date.
------------------
Notary Public
My commission expires:
