Fiscal Agency Agreement

EXHIBIT 10.3


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FISCAL AGENCY AGREEMENT


between


JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
Issuer


and


THE FIRST NATIONAL BANK OF BOSTON
Fiscal Agent


__________________________


Dated as of February 25, 1994


__________________________


7 3/8% Surplus Notes scheduled to mature on February 15, 2024


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TABLE OF CONTENTS
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Page
---- 1. The Securities ...................................................... 1
(a) General ......................................................... 1
(b) Forms of Securities ............................................. 1
(c) Book-Entry Provisions ........................................... 2
(d) Denominations ................................................... 4


2. Fiscal Agent; Other Agents .......................................... 4


3. Authentication ...................................................... 5


4. Payment and Cancellation ............................................ 6
(a) Payment ......................................................... 6
(b) Cancellation .................................................... 7


5. Global Securities ................................................... 7


6. Registration, Transfer and Exchange of Securities ................... 9


7. Delivery of Certain Information ..................................... 12
(a) Rule 144A Information ........................................... 12
(b) Periodic Reports ................................................ 12


8. Conditions of Fiscal Agent's Obligations ............................ 12
(a) Compensation and Indemnity ...................................... 13
(b) Agency .......................................................... 13
(c) Advice of Counsel ............................................... 14
(d) Reliance ........................................................ 14
(e) Interest in Securities, etc. ..................................... 14
(f) Non-Liability for Interest ...................................... 14
(g) Certifications .................................................. 14
(h) No Implied Obligations .......................................... 15


9. Resignation, Removal and Appointment of Successor ................... 15
(a) Fiscal Agent and Paying Agent ................................... 15
(b) Resignation and Removal ......................................... 15
(c) Successors ...................................................... 16
(d) Acknowledgement ................................................. 17
(e) Merger, Consolidation, etc. ...................................... 17


10. Meetings and Amendments ............................................ 17
(a) Calling of Meeting, Notice and Quorum .......................... 17
(b) Approval ....................................................... 19
(c) Binding Nature of Amendments, Notices, Notations, etc. .......... 20
(d) "Outstanding" Defined .......................................... 21


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Page
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11. Governing Law ...................................................... 22


12. No Implied Obligations ............................................. 22


13. Notices ............................................................ 22


14. Separability ....................................................... 23


15. Headings ........................................................... 24


16. Counterparts ....................................................... 24


EXHIBIT A FORM OF SECURITY ............................................. A-1


EXHIBIT B FORM OF TRANSFER CERTIFICATE FOR
EXCHANGE OR TRANSFER OF RESTRICTED
DEFINITIVE SECURITY .......................................... B-1


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FISCAL AGENCY AGREEMENT, dated as of February 25, 1994, between JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, a mutual life insurance company organized under the laws of the Commonwealth of Massachusetts (the "Issuer"), having its principal office at 200 Clarendon Street, Boston, MA 02117, and The First National Bank of Boston, a national banking association organized under the laws of the United States, as Fiscal Agent (together with any successor as Fiscal Agent hereunder, the "Fiscal Agent"). The Exhibits attached hereto shall be deemed to be a part of this Agreement.


1. The Securities.
--------------


(a) General. This Agreement is made in respect of $450,000,000 aggregate
------- principal amount of 7 3/8% Surplus Notes scheduled to mature on February 15, 2024 (the "Notes" or the "Securities") of the Issuer. Claims based upon the Securities will rank below all Indebtedness, Policy Claims and Prior Claims (each as hereinafter defined) upon the terms and conditions set forth in Section 10 of the Notes. The payment by the Issuer of principal and interest on the Securities shall be conditioned upon the payment restrictions set forth in paragraphs 4 and 10 of the Securities (the "Payment Restrictions"). The Notes are scheduled to mature on February 15, 2024 (the "Scheduled Maturity Date"). Any reference herein to the term "scheduled maturity date" or other date for the payment of principal of the Notes shall include the date upon which any state or federal agency obtains an order or grants approval for the reorganization, rehabilitation, liquidation, conservation or dissolution of the Issuer.


(b) Forms of Securities. The Securities are being offered and sold by the
------------------- Issuer pursuant to a Purchase Agreement, dated February 17, 1994 (the "Purchase Agreement"), between the Issuer and the Purchasers named therein (the "Purchasers") either (i) to "institutional investors" that are "accredited investors" ("Accredited Investors") within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act of 1933, as amended (the "Act"), in definitive, fully registered form without interest coupons ("Definitive Securities") or (ii) to qualified institutional buyers within the meaning of Rule 144A ("Rule 144A") under the Act in the form of global Securities (the "global Securities") in definitive, fully registered form without interest coupons. The Securities shall be substantially in the form of the Security attached as Exhibit A hereto, with such applicable legends as are provided for in Exhibit A. Each such global Security shall be registered in the name of The Depository Trust Company (together with any successor depositary, the "Depositary")


or its nominee and deposited with the Fiscal Agent or its affiliate, as custodian for the Depositary, duly executed by the Issuer and authenticated by the Fiscal Agent as hereinafter provided. The aggregate principal amount of each global Security may from time to time be increased or decreased by adjustments made on the records of the Fiscal Agent, as custodian for the Depositary, as hereinafter provided.


All Securities shall be issued substantially in the form of Security attached hereto as Exhibit A and shall be executed manually or in facsimile on behalf of the Issuer by (i) any two of Chief Financial Officer Thomas E. Moloney, Senior Vice President and Treasurer John T. Farady, Second Vice President Henry J. Desautel, or any one of the foregoing and Assistant Treasurer Julie H. Indge, Assistant Treasurer Karen E. Liukkonen or Assistant Treasurer Paul A. Meissner, Jr. or (ii) any other officer or officers of the Issuer that may be certified to the Fiscal Agent as being authorized to execute the Securities manually or in facsimile on behalf of the Issuer (the "Authorized Officers"), notwithstanding that such officers, or any of them, shall have ceased, for any reason, to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of any such Security. The Securities (i) may also have such additional provisions, omissions, variations or substitutions as are not inconsistent with the provisions of this Agreement, and (ii) may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with this Agreement, any law or with any rules made pursuant thereto or with the rules of any securities exchange, insurance regulatory or other governmental agency or depositary therefor or as may, consistently herewith, be determined by the Authorized Officers executing such Securities, in each case (i) and (ii) as conclusively evidenced by their proper execution of such Securities.


(c) Book-Entry Provisions. This Section 1(c) shall apply to all global
--------------------- Securities.


The Issuer shall execute and the Fiscal Agent shall, in accordance with this Section 1(c), authenticate and deliver one or more global Securities as required to be issued pursuant to Section 1(b) hereof, which (A) shall be registered in the name of the Depositary or its nominee, (B) shall be delivered by the Fiscal Agent to the Depositary or pursuant to the Depositary's instructions and (C) shall bear legends substantially to the following effect:


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"UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
[INSERT NAME OF DEPOSITARY] TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IN EXCHANGE
FOR THIS SECURITY OR ANY PORTION HEREOF IS REGISTERED IN THE NAME OF
[INSERT NAME OF NOMINEE OF DEPOSITARY] OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [INSERT NAME OF
DEPOSITARY] (AND ANY PAYMENT IS MADE TO [INSERT NAME OF NOMINEE OF
DEPOSITARY] OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF [INSERT NAME OF DEPOSITARY]), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON OTHER THAN
[INSERT NAME OF DEPOSITARY] OR A NOMINEE THEREOF IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, [INSERT NAME OF NOMINEE OF DEPOSITARY],
HAS AN INTEREST HEREIN."


"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE FISCAL
AGENCY AGREEMENT. THIS GLOBAL SECURITY MAY NOT BE EXCHANGED, IN WHOLE
OR IN PART, FOR A SECURITY REGISTERED IN THE NAME OF ANY PERSON OTHER
THAN [INSERT NAME OF DEPOSITARY] OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES SET FORTH IN SECTION 5 OF THE FISCAL AGENCY
AGREEMENT, AND MAY NOT BE TRANSFERRED, IN WHOLE OR IN PART, EXCEPT IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 6(B) OF THE
FISCAL AGENCY AGREEMENT. BENEFICIAL INTERESTS IN THIS GLOBAL SECURITY
MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE WITH SECTION 6(B) OF THE
FISCAL AGENCY AGREEMENT."


Neither any members of, or participants in, the Depositary ("Agent Members") nor any other persons on whose behalf Agent Members may act shall have any rights under this Fiscal Agency Agreement with respect to any global Security registered in the name of the Depositary or any nominee thereof, or under any such global Security, and the Depositary or such nominee, as the case may be, may be treated by the Issuer, the Fiscal Agent and any agent of the Issuer or the Fiscal Agent as the absolute owner and holder of such global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Fiscal Agent or any agent of the Issuer or the Fiscal Agent from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other


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person on whose behalf an Agent Member may act, the operation of customary practices of such persons governing the exercise of the rights of a holder of any Security.


(d) Denominations. The Securities and beneficial interests in global
------------- Securities shall be issuable in minimum denominations of (i) $250,000, in the case of Securities offered and sold, or subsequently transferred, in reliance on Rule 144A, (ii) $500,000, in the case of Securities offered and sold, or subsequently transferred, to Accredited Investors or (iii) $500,000 the case of Securities subsequently transferred in reliance on Regulation S under the Act, and, in each case, any amount in excess thereof that is an integral multiple of $1,000.


2. Fiscal Agent; Other Agents.
---------------------------


The Issuer hereby appoints The First National Bank of Boston, acting through its corporate trust office at Blue Hills Office Park, 150 Royall Street, Canton, Massachusetts 02021, attn: Corporate Trust Division and the office of its affiliate, BancBoston Trust Company of New York (for payments, exchanges and transfers) in the Borough of Manhattan, The City of New York (together, the "Corporate Trust Office"), as fiscal agent of the Issuer in respect of the Securities upon the terms and subject to the conditions herein set forth, and The First National Bank of Boston hereby accepts such appointment. The First National Bank of Boston, and any successor or successors as such fiscal agent qualified and appointed in accordance with Section 9 hereof, are herein called the "Fiscal Agent". The Fiscal Agent shall have the powers and authority granted to and conferred upon it in the Securities and hereby and such further powers and authority to act on behalf of the Issuer as may be mutually agreed upon in writing by the Issuer and the Fiscal Agent. The Fiscal Agent shall keep a copy of this Agreement available for inspection during normal business hours at its Corporate Trust Office. The Fiscal Agent or any Paying Agent (as defined below) shall also act as Transfer Agent (as defined below). All of the terms and provisions with respect to such powers and authority contained in the Securities are subject to and governed by the terms and provisions hereof.


The Issuer may, at its discretion, appoint one or more agents (a "Paying Agent" or "Paying Agents") for the payment, to the extent permitted under the Payment Restrictions, of the principal of and any interest on the Securities, and one or more agents (a "Transfer Agent" or "Transfer Agents") for the transfer and exchange of Securities, at such place or places as the Issuer may


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determine; provided, however, that the Issuer shall at all times maintain a
-------- ------- Paying Agent and Transfer Agent in the Borough of Manhattan, The City of New York (which Paying Agent and Transfer Agent may be the Fiscal Agent or its affiliate). The Issuer hereby initially appoints the Fiscal Agent or its affiliate, as appropriate, at its respective Corporate Trust Office as principal Paying Agent, Transfer Agent, authenticating agent and securities registrar, and the Fiscal Agent or its affiliate, as appropriate, hereby accepts such appointment. Each Transfer Agent shall act as a security registrar and there shall be kept at the office of each Transfer Agent a register in which, subject to such reasonable regulations as the Issuer may prescribe, the Issuer shall provide for the registration of Securities and the registration of transfers of Securities. The Issuer shall promptly notify the Fiscal Agent of the name and address of any other Paying Agent or Transfer Agent appointed by it, and will notify the Fiscal Agent of the resignation or termination of any such Paying Agent or Transfer Agent. Subject to the provisions of Section 9(c) hereof, the Issuer may vary or terminate the appointment of any such Paying Agent or Transfer Agent at any time and from time to time upon giving not less than 90 days' notice to such Paying Agent or Transfer Agent, as the case may be, and to the Fiscal Agent. The Issuer shall cause notice of any resignation, termination or appointment of the Fiscal Agent or any Paying Agent or Transfer Agent and of any change in the office through which any such Agent will act to be provided to holders of Securities.


3. Authentication.
--------------


The Fiscal Agent is authorized, upon receipt of Securities duly executed on behalf of the Issuer for the purposes of the original issuance of Securities, (i) to authenticate said Securities in an aggregate principal amount not in excess of $450,000,000, and to deliver said Securities in accordance with the written order or orders of the Issuer signed on its behalf by the Authorized Officers and (ii) thereafter to authenticate and deliver Securities in accordance with the provisions therein and hereinafter set forth.


The Fiscal Agent may, with the consent of the Issuer, appoint by an instrument or instruments in writing one or more agents (which may include itself) for the authentication of the Securities and, with such consent, vary or terminate any such appointment upon written notice and approve any change in the office through which any authenticating agent acts. The Issuer (by written notice to the Fiscal Agent and the authenticating agent whose


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appointment is to be terminated) may also terminate any such appointment at any time. The Fiscal Agent hereby agrees to solicit written acceptances from the entities concerned (in form and substance satisfactory to the Issuer) of such appointments. In its acceptance of such appointment, each such authenticating agent shall agree to act as an authenticating agent pursuant to the terms and conditions of this Agreement.


4. Payment and Cancellation
------------------------


(a) Payment. For so long as the Fiscal Agent is acting as a Paying Agent
------- hereunder, the Issuer, subject to the Payment Restrictions, shall provide to the Fiscal Agent, in immediately available funds on or prior to 10:00 a.m., New York time, on each date on which a payment of principal of or any interest on the Securities shall be scheduled, as set forth in the text of the Securities, such amount, in U.S. dollars, as is necessary to make such payment, and the Issuer hereby authorizes and directs the Fiscal Agent from funds so provided to it to make or cause to be made payment of the principal of and any interest, as the case may be, on the Securities in the manner, at the times and for the purposes set forth herein and in the text of said Securities; provided that (1) any
-------- payment of principal of or any interest on the Securities may be made by dollar check mailed to the persons (the "registered holders") in whose names such Securities are registered on the register maintained pursuant to Section 6 hereof at the close of business on the record dates designated in the text of the Securities and (2) the Issuer will not provide any such funds to the Fiscal Agent prior to such time as the relevant payment of principal or interest is approved by the Commissioner of Insurance of the Commonwealth of Massachusetts (the "Commissioner", which term shall include such governmental officer, body or authority as may after the date hereof succeed such Commissioner as the primary regulator of the Issuer's financial condition under applicable law). The Fiscal Agent may rely on written notice of such approval, when received, without inquiry. Payments of principal of or any interest on the Securities may be made, in the case of a registered holder of at least $5,000,000 aggregate principal amount of Securities, by wire transfer to a dollar account maintained by the payee with a bank in accordance with Section 5(a) of the Securities if such registered holder so elects by giving written notice to the Fiscal Agent, not less than 15 days (or such fewer days as the Fiscal Agent may accept at its discretion) prior to the date on which such payments are scheduled to be made, of such election and of the account to which payment is to be made. Unless such designation is revoked, any such


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designation made by such registered holder with respect to such Securities shall remain in effect with respect to any future payments with respect to such Securities payable to such registered holder. The Issuer shall pay any reasonable administrative costs in connection with making any such payments. The Fiscal Agent shall arrange directly with any other Paying Agent who may have been appointed by the Issuer pursuant to the provisions of Section 2 hereof for the payment, subject to the Payment Restrictions, from funds so paid to it by the Issuer of the principal of and any interest on the Securities in the manner, at the times and for the purposes set forth herein and in the text of the Securities. Notwithstanding the foregoing, the Issuer may provide directly to a Paying Agent funds for the payment, subject to the Payment Restrictions, of the principal thereof and interest thereon under an agreement with respect to such funds containing substantially the same terms and conditions set forth in this Section 4(a) and in Section 8(b) hereof; and the Fiscal Agent shall have no responsibility with respect to any funds so provided by the Issuer to any such Paying Agent.


Payments of principal of and interest on the Securities shall be made in the manner set forth in the Securities, including the Payment Restrictions set forth therein.


(b) Cancellation. All Securities delivered to the Fiscal Agent (or any
------------ other Agent appointed by the Issuer pursuant to Section 2 hereof) for payment, redemption or registration of transfer or exchange as provided herein or in the Securities shall be marked "cancelled" and, in the case of any other such Agent, forwarded to the Fiscal Agent. All such Securities shall be destroyed by the Fiscal Agent or such other person as may be jointly designated by the Issuer and the Fiscal Agent, which shall thereupon furnish certificates of such destruction to the Issuer.


5. Global Securities.
-----------------


(a) Notwithstanding any other provisions of this Agreement or the Securities, a global Security shall not be exchanged in whole or in part for a Security registered in the name of any person other than the Depositary or one or more nominees thereof, provided that a global Security may also be exchanged
-------- for Securities registered in the names of any person designated by the Depositary in the event that (i) the Depositary has notified the Issuer that it is unwilling or unable to continue as Depositary for such global Security or such Depositary has ceased to be a "clearing agency" registered under the Securities Exchange


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Act of 1934 (the "Exchange Act"), (ii) an event (as described in paragraph 14(a), or the first sentence of paragraph 14(b) of the Securities), has occurred and is continuing with respect to the Securities, or (iii) a request for an exchange of interests in the global Security for definitive certificates has been made upon 60 days' prior written notice given to the Fiscal Agent in accordance with the Depositary's customary procedures and a copy of such notice has been received by the Issuer from the Fiscal Agent. Any global Security exchanged pursuant to clause (i) above shall be so exchanged in whole and not in part and any global Security exchanged pursuant to clause (ii) or (iii) above may be exchanged in whole or from time to time in part as directed by the Depositary. Any Security issued in exchange for a global Security or any portion thereof shall be a global Security, provided that any
-------- such Security so issued that is registered in the name of a person other than the Depositary or a nominee thereof shall not be a global Security.


(b) Securities issued in exchange for a global Security or any portion thereof shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such global Security or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear the applicable legends provided for herein. Any global Security to be exchanged in whole shall be surrendered by the Depositary to the Transfer Agent or its affiliate. With regard to any global Security to be exchanged in part, either such global Security shall be so surrendered for exchange or, if the Fiscal Agent is acting as custodian for the Depositary or its nominee with respect to such global Security, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Fiscal Agent. Upon any such surrender or adjustment, the Fiscal Agent shall authenticate and deliver the Security issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof. Any Security delivered in exchange for the global Security or any portion thereof shall bear the legend regarding transfer restrictions applicable to the global Security set forth on the form of Security attached as Exhibit A hereto, unless, pursuant to Section 6(g) hereof, the Issuer determines that such legend may be removed.


(c) Subject to the provisions of Section 1(c) above, the registered holder may grant proxies and otherwise authorize any person, including Agent Members and persons


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that may hold interests through Agent Members, to take any action which a registered holder is entitled to take under this Agreement or the Securities.


(d) In the event of the occurrence of any of the events specified in paragraph (a) of this Section 5, the Issuer will promptly make available to the Fiscal Agent a reasonable supply of certificated Securities in definitive, fully registered form without interest coupons.


6. Registration, Transfer and
Exchange of Securities.
--------------------------


(a) General. The Fiscal Agent or its affiliate, as appropriate, as agent
------- of the Issuer for this purpose, shall maintain at its Corporate Trust Office in the Borough of Manhattan, The City of New York, a register of Securities for the registration of Securities and the transfers and exchanges thereof. Subject to the provisions of this Section 6, upon presentation for transfer or exchange of any Security at the office of any Transfer Agent accompanied by a written instrument of transfer or exchange in the form approved by the Issuer (it being understood that, until notice to the contrary is given to holders of Securities, the Issuer shall be deemed to have approved the form of instrument of transfer or exchange, if any, printed on any Security), executed by the registered holder, in person or by such holder's attorney thereunto duly authorized in writing, such Security shall be transferred upon the register for the Securities, and a new Security shall be authenticated and issu ...