GUARANTEE
GUARANTEE
made
as
of the 29th day
of
January, 2007 by Manulife Financial Corporation, a company incorporated under
the Insurance
Companies Act
(Canada)
(the “Guarantor”),
in
favour of Maritime Life Canadian Funding, a trust formed under the laws of
Ontario (the “Trust”)
represented by its trustee, The Canada Trust Company (the “Trustee”).
WHEREAS,
the
Guarantor owns all of the outstanding common shares of The Manufacturers
Life
Insurance Company (the “Manufacturers
Life”);
AND
WHEREAS,
the
Guarantor wishes to execute this Guarantee in favour of the Trust, in order
to
guarantee the payment of any amounts owing by Manufacturers Life pursuant
to the
annuities and agreements listed in Schedule A hereto (the “Annuities”)
in
respect of which Manufacturers Life has assumed, as an additional obligor,
the
obligations of the Old Maritime Corporation Limited, formerly known as Maritime
Life Assurance Company (“Maritime
Life”),
thereunder pursuant to an Undertaking and Notice of Assumption dated December
30, 2004 (the “MLI
Undertaking”)
made
and delivered by Manufacturers Life in favour of the Trust and the Trustee
and
certain other parties;
AND
WHEREAS,
this
Guarantee is intended to enable Manufacturers Life to obtain an exemption
(as
the same may be amended, restated or superseded from time to time, the
“Continuous
Disclosure Exemption”)
from
filing certain continuous disclosure documents with the Canadian securities
regulatory authorities, which will relieve Manufacturers Life of costs and
inconvenience;
AND
WHEREAS, as
the
owner of all of Manufacturers Life’s outstanding common shares, the Guarantor
will indirectly benefit from the benefits to Manufacturers Life referred
to in
the previous recital;
NOW
THEREFORE,
in
consideration of the premises set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
Guarantor hereby agrees as follows:
Section 1. Defined
Terms.
Capitalized terms used in this Guarantee and not otherwise defined shall
have
the respective meanings given to such terms in the Master Programme Agreement,
including if incorporated by reference therein, and the following terms shall
have the following meanings:
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(a)
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“Guaranteed
Obligations”
has the meaning attributed to such term in Section 2
hereof;
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(b)
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“Master
Programme Agreement”
has the meaning attributed to such term in the MLI Undertaking;
and
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(c)
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“NI
51-102”
means National Instrument 51-102 — Continuous
Disclosure Obligations.
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Section 2. Guarantee.
The
Guarantor hereby unconditionally and, subject to Section 10
hereof,
irrevocably guarantees to the Trust, as principal and not merely as surety,
the
due and punctual payment (whether at stated maturity, upon acceleration or
otherwise) of all payments under the Annuities and all other amounts payable
by
Manufacturers Life under the Annuities, including, for greater certainty,
interest on the amount of each overdue payment under each Annuity calculated,
at
the rate specified for such purpose with respect to such Annuity, in the
relevant Acknowledgement and Confirmation of Annuity Transfer from and including
the date on which such payment was due under the applicable Annuity to and
including the date on which such payment is made to the Trust under such
Annuity
or this Guarantee (such amounts, the “Guaranteed
Obligations”).
In
the
case of the failure of Manufacturers Life punctually to make any such payment
under the Annuities, the Guarantor hereby agrees to cause any such payment
to be
made punctually when and as the same shall become due and payable (whether
at
stated maturity, upon acceleration or otherwise), and in any event within
15
days of receiving notice of any such failure and demand for payment therefor
from the Trustee, and as if such payment were made by Manufacturers
Life.
Section 3. Guarantee
Absolute.
The
Guarantor agrees that the guarantee contained in this Guarantee is a guarantee
of payment and that the Guarantor's obligation to pay the Guaranteed Obligations
hereunder shall be primary, absolute and unconditional and, without limiting
the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
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(a)
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any
extension of the time or times for the payment of the Guaranteed
Obligations, renewal, settlement, compromise, waiver, indulgence
or
release granted to Manufacturers Life or Maritime Life by the Trust
in
respect of any obligation of Manufacturers Life or Maritime Life
under the
Annuities, by operation of law or
otherwise;
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(b)
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any
modification or amendment of or supplement to the
Annuities;
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(c)
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any
change in the corporate existence, structure or ownership of Manufacturers
Life or Maritime Life, or any insolvency, bankruptcy, reorganization
or
other similar proceeding affecting Manufacturers Life or Maritime
Life or
their assets or any resulting release or discharge of any obligation
of
Manufacturers Life or Maritime Life contained in the
Annuities;
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(d)
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the
existence of any defense, claim, set-off or other rights which
the
Guarantor may have at any time against Manufacturers Life, Maritime
Life,
the Trust, the Trustee or any other Person, whether in connection
herewith
or any unrelated transactions;
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(e)
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any
invalidity, illegality, irregularity or unenforceability for any
reason of
the Annuities or in any part thereof as regards Manufacturers Life
or
Maritime Life, or any provision of applicable law or regulation
purporting
to prohibit the payment by Manufacturers Life or Maritime Life
of any
amount payable by Manufacturers Life or Maritime Life under the
Annuities;
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(f)
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any
other act or omission to act or delay of any kind by Manufacturers
Life,
Maritime Life, the Trust, the Trustee, or any other Person or any
other
circumstance whatsoever which might, but for the provisions of
this
paragraph, constitute a legal or equitable discharge or defense
of the
Guarantor's obligations hereunder;
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(g)
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any
contest by Manufacturers Life, Maritime Life or any Person as to
the
amount of the Guaranteed
Obligations;
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(h)
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the
failure to enforce the provisions of any of the Annuities;
or
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(i)
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the
recovery of any judgment against Manufacturers Life, Maritime Life
or any
action to enforce the same.
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Section 4. Manner
of Payment.
All
payments to be made by the Guarantor hereunder shall be made to the Trustee
for
the benefit of the Trust.
Section 5. Enforcement
of Guarantee.
The
Guarantor agrees that the Trust need not seek or exhaust its recourse against
Manufacturers Life, Maritime Life or any other Person in respect of the
Guaranteed Obligations before being entitled to payment under this
Guarantee.
Section 6. Waiver.
The
Guarantor hereby irrevocably waives promptness, diligence, acceptance hereof,
presentment, demand, filing of claims with a court in the event of merger,
amalgamation, reorganization, insolvency, bankruptcy or similar proceeding
affecting Maritime Life or Manufacturers Life or their respective assets
or
change in corporate structure or ownership of Maritime Life or Manufactures
Life, protest and any and all other notice not provided for herein and any
requirement that at any time the Trust or the Trustee or any other Person
exhaust any right or take any action against Maritime Life, Manufacturers
Life
or any other Person, and any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge, release or defense of the Guarantor
or that might otherwise limit recourse against the Guarantor.
Section 7. Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made as follows:
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If
to the Guarantor:
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Manulife
Financial Corporation
000
Xxxxx Xxxxxx Xxxx
Xxxxxxx,
Xxxxxxx
X0X
0X0
Attention: Treasurer
Fax
No.: 000-000-0000
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If
to Manufacturers Life:
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The
Manufacturers Life Insurance Company
000
Xxxxx Xxxxxx Xxxx
Xxxxxxx,
Xxxxxxx
X0X
0X0
Attention: Treasurer
Fax
No.: 000-000-0000
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If
to the
Trust or the Trustee, as specified in Article 7 of the Master Programme
Agreement.
Section 8. No
Waiver; Remedies.
No
failure on the part of the Trust or the Trustee 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 9. Continuing
Guarantee; Reinstatement in Certain Circumstances.
The
guarantee contained in this Guarantee is a continuing guarantee and the
Guarantor's obligations hereunder shall:
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(a)
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remain
in full force and effect until the earlier of the indefeasible
payment in
full of the Guaranteed Obligations or termination of this Guarantee
pursuant to Section 10;
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(b)
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be
binding upon the Guarantor and its successors and assigns; and
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(c)
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inure
to the benefit of and be enforceable by the Trust and its successors
and
permitted assigns;
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provided,
however, that this Guarantee shall not be construed to create any right in
any
Person other than the Trust and its successors and permitted assigns or to
be a
contract in whole or in part for the benefit of any Person other than the
Trust
and its respective successors and permitted assigns. If at any time any payment
of any of the Guaranteed Obligations is rescinded or must otherwise be restored
or returned upon the insolvency, bankruptcy or reorganization of Manufacturers
Life or Maritime Life or otherwise, the obligations of the Guarantor hereunder
with respect to such payment shall be reinstated as though such payment had
been
due but not made at such time.
Section 10. Term. Notwithstanding
Section 9,
this
Guarantee shall come into force and be effective as of the date hereof and
shall
terminate and be of no further force and effect (except in respect of any
demand
previously made on the Guarantor hereunder) at the earlier of:
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(a)
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unless
the Guarantor and Manufacturers Life
agree to the contrary, the date no Annuities are outstanding
or no
obligations of Manufacturers Life under the MLI Undertaking are
outstanding;
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(b)
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the
date that the Trust ceases to be a reporting issuer, or the equivalent
thereof, in all of the provinces of
Canada;
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(c)
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the
date as of which the Guarantor no longer owns, directly or indirectly,
all
of the outstanding common shares of Manufacturers Life;
or
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(d)
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the
date that Manufacturers Life commences filing with the Securities
Commissions its own (i) audited annual financial statements including
management’s discussion and analysis, (ii) unaudited interim financial
statements including management’s discussion and analysis, (iii) annual
information forms, (iv) press releases and material change reports
in the
case of material changes that are also material changes in the
affairs of
the Guarantor, and (v) other material contracts, in each case pursuant
to
NI 51-102.
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Section 11. Stay
of Liability to Pay or Time for Payment.
Without
limiting any other provision of this Guarantee, if the liability to pay or
the
time for payment of any Guaranteed Obligation is stayed upon the insolvency,
bankruptcy or reorganization of Manufacturers Life or Maritime Life, all
such
amounts otherwise subject to payment shall nonetheless be payable by the
Guarantor hereunder to the Trust forthwith on demand.
Section 12. Expenses.
The
Guarantor shall pay, or reimburse, the Trust and the Trustee for all costs
and
expenses including, without limitation, reasonable attorneys' fees and
disbursements reasonably incurred by it in connection with the enforcement
of
this Guarantee; provided, however, that the Guarantor shall only be required
to
pay, or reimburse, for the reasonable attorneys' fees and disbursements for
one
counsel for the Trust and the Trustee.
Section 13. Governing
Law.
This
Guarantee shall be governed by, and construed in accordance with, the laws
of
the Province of Ontario and the federal laws of Canada applicable
therein.
Section 14. Severability.
Any
provision of this Guarantee 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 judgment shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 15. Entire
Agreement.
This
Guarantee and the Undertaking and Notice of Assumption dated the date hereof
made and delivered by the Guarantor in favour of the Trust and the Trustee
and
certain other parties, embody the entire agreement of the Guarantor with
respect
to the subject matter hereof and supersede any prior written or oral agreements
and understandings relating to the subject matter hereof and
thereof.
[remainder
of page intentionally left blank]
IN
WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly executed
and
delivered as of the date first written above as a contract under seal with
the
intention that the Guarantor be bound whether or not there is consideration
for
this Guarantee notwithstanding references to consideration in this
Guarantee.
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(seal)
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MANULIFE
FINANCIAL CORPORATION
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By: /s/
Xxxxx X. Xxxxxxxxxxx
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Name:
Xxxxx X. Xxxxxxxxxxx
Title: Senior
Executive Vice President
and
Chief Financial Officer
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Schedule
A
Annuities
and Related Agreements
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1.
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Annuity
Policy Number 15307 effective March 12, 2002 issued by Maritime
Life to
RBC DS Financial Services (Ontario) Inc. and transferred to the
Trustee as
trustee of the Trust as of March 12,
2002.
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2.
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Annuity
Rider No. 1 to Annuity Policy Number 15307 dated March 12,
2002.
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3.
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Acknowledgement
and Confirmation of Annuity Transfer between the Trust, RBC Dominion
Securities Inc., RBC DS Financial Services (Ontario) Inc., Computershare
Trust Company of Canada and Maritime Life dated March 12,
2002.
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4.
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Annuity
Policy Number 16042 effective November 12, 2003 issued by Maritime
Life to
RBC DS Financial Services (Ontario) Inc. and transferred to the
Trustee as
trustee of the Trust as of November 12,
2003.
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5. Annuity
Rider No. 1 to Annuity Policy Number 16042 dated November 12, 2003.
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6.
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Acknowledgement
and Confirmation of Annuity Transfer between the Trust, RBC Dominion
Securities Inc., RBC DS Financial Services (Ontario) Inc., Computershare
Trust Company of Canada and Maritime Life dated November 12,
2003.
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