SUBORDINATED NEW GUARANTEE
EXHIBIT
4(e)
SUBORDINATED
NEW GUARANTEE (the "Subordinated Guarantee"), dated as of [___________, 200___],
by SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.), a corporation organized under
the laws of the State of Delaware ("Sun Life U.S." or the "Guarantor"), in
connection with certain deferred combination fixed and variable individual
annuity contracts (hereinafter, the "Contracts") issued by SUN
LIFE INSURANCE AND ANNUITY COMPANY OF NEW YORK,
a stock life insurance company organized under the laws of the State of New
York
("Sun Life N.Y.").
W
I T N E S S E T H:
WHEREAS,
Sun Life N.Y. will be the issuer of Contracts which offer holders thereof the
option to earn a guaranteed fixed return for specified periods, which would
result in such holders receiving certain guarantee period interests;
and
WHEREAS,
the offer and sale of certain of such guarantee
period interests will
be registered under the Securities Act of 1933, as amended (the "Securities
Act") by Sun Life N.Y. and the issuance of this Subordinated Guarantee will
be
registered under the Securities Act by the Guarantor, which guarantee period
interests may be referred to in any applicable Securities Act registration
statement as "market value adjusted interests" or similar terms;
and
WHEREAS,
this Subordinated Guarantee uses the term "Guarantee Period" to refer to any
of
the aforementioned specified periods that (a) are applicable to guarantee period
interests that are sold pursuant to such a registered offering; and (b) are
under Contracts sold on or after [____________, 200__] (the effective date
of
the registration statement); and
WHEREAS,
this Subordinated Guarantee, which applies only to the guarantee period
interests of the affected Contracts and to no other obligations of Sun Life
N.Y.
thereunder, is intended to enable Sun Life N.Y. to be exempt from filing certain
periodic reports under the Securities Exchange Act of 1934, as amended (the
"1934 Act"),which will relieve Sun Life N.Y. of certain costs and inconvenience;
and
WHEREAS,
as the owner of all of Sun Life N.Y.’s issued and outstanding shares of stock,
the Guarantor also will indirectly benefit from the benefits to Sun Life N.Y.
referred to above;
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 parties hereby agree as follows:
SECTION
1. Guarantee.
The Guarantor hereby unconditionally and irrevocably guarantees, as a principal
and not merely as a surety, the full and punctual payment when due of all
amounts payable by Sun Life N.Y. from a Guarantee Period to any holder, owner,
annuitant or beneficiary under any Contract creating such interest, to any
successor, legatee, heir, or assignee of 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 amounts payable by Sun Life N.Y. to a Payee
from a Guarantee Period:
(a) upon
a full or partial transfer, withdrawal, surrender, maturity, annuitization,
loan
or other similar removal from the Guarantee Period will be the net amount so
removed from such Guarantee Period, after (i) increase for any interest or
positive market value adjustment that would be credited to a Payee under the
terms of the Contract with respect to 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 with respect to 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, will be an amount equal to the Contract's
account value then allocated to the Guarantee Period, 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 provided, however, that the Guarantor shall in no case be required
to
pay a greater amount upon the death of an owner, holder, or annuitant under
a
Contract than the terms of the Contract obligate Sun Life N.Y. to pay upon
such
death.
This
Subordinated Guarantee guarantees the payment of the foregoing amounts payable
by Sun Life N.Y. from a Guarantee Period but does not guarantee any other
obligations of Sun Life N.Y. under a Contract.
SECTION
2. Guarantee
Absolute.
The Guarantor agrees that this Subordinated Guarantee is a guarantee of payment
and not of collection or collectibility, and that the obligations of the
Guarantor 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 Sun Life N.Y. 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 Sun Life
N.Y., or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting Sun Life N.Y. or its assets or any resulting release
or discharge of any obligation of Sun Life N.Y. contained in the
Contracts;
|
| (iv) |
the
existence of any defense, claim, set-off or other rights which the
Guarantor may have at any time against Sun Life N.Y., 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 Guarantor other than obligations
hereunder;
|
| (v) |
any
invalidity or unenforceability relating to or against Sun Life N.Y.
for
any reason under the Contracts, or any provision of applicable law
or
regulation purporting to prohibit the payment by Sun Life N.Y. of any
amount payable by Sun Life N.Y. under the Contracts;
or
|
| (vi) |
any
other act or omission to act or delay of any kind by Sun Life N.Y.
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 Guarantor’s obligations hereunder.
|
SECTION
3. Representations
and Warranties.
The Guarantor hereby represents and warrants that:
(a)
Authorization;
No Contravention.
The execution, delivery and performance by the Guarantor of this Subordinated
Guarantee is within the Guarantor’s powers, has been duly authorized by all
necessary action, requires no action by or in respect of, or filing with, any
governmental body, agency or official and does not contravene, or constitute
a
default under, any known provision of applicable law or regulation, as amended
from time to time, or the Certificate of Incorporation or by-laws of the
Guarantor or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Guarantor or result in or require the creation
or
imposition of any lien on any asset of the Guarantor.
(b)
Binding
Effect.
This Subordinated Guarantee constitutes a valid and binding agreement of the
Guarantor, enforceable against the Guarantor in accordance with its
terms.
SECTION
4. Enforcement
of Guarantee.
Without limiting any other provision of this Subordinated Guarantee, in no
event
shall any Payee have any obligation to proceed against Sun Life N.Y. or any
other person or property before seeking satisfaction from the Guarantor. Any
Payee may enforce the Subordinated Guarantee directly against the Guarantor,
subject to no preconditions other than failure by Sun Life N.Y. to pay when
due
any guaranteed amount.
SECTION
5. Waiver.
Without limiting any other provision of this Subordinated Guarantee, the
Guarantor 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 Sun Life N.Y. and any other
circumstances 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
6. Compliance
with Regulation S-X.
This Subordinated Guarantee shall be interpreted in such a manner that the
Subordinated Guarantee will be "full and unconditional" as those words are
used
in Rule 3-10 of Regulation S-X of the United States Securities and Exchange
Commission, as currently in effect, and as they may be amended from time to
time. Payees shall automatically have any additional rights and remedies against
the Guarantor that may be necessary to yield that result.
SECTION
7. 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
8. Continuing
Guarantee; Reinstatement in Certain Circumstances.
This Subordinated Guarantee is a continuing guarantee and the Guarantor's
obligations hereunder shall (i) remain in full force and effect until the
indefeasible payment in full of all amounts payable by Sun Life N.Y. from all
Guarantee Periods; and (ii) be binding upon the Guarantor and its successors
and
assigns. If at any time any payment by Sun Life N.Y. of any amounts payable
by
Sun Life N.Y. from any Guarantee Period is rescinded or must otherwise be
restored or returned upon the insolvency, bankruptcy or reorganization of Sun
Life N.Y. or otherwise, the Guarantor'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
9. Termination.
The Guarantor may terminate this Subordinated Guarantee as it would apply to
any
Guarantee Period commencing after the effective date of any such termination
(the "Termination Date") by giving written notice to Sun Life N.Y. and the
holders of outstanding Contracts at least fourteen (14) days prior to the
Termination Date specified in such notice. The termination of this Subordinated
Guarantee with respect to Guarantee Periods commencing after the Termination
Date shall not in any way affect, modify, alter or amend the Guarantor’s
continuing obligations with respect to Guarantee Periods commencing prior to
the
Termination Date.
SECTION
10. Successor
Guarantor.
In the event of any amalgamation or consolidation by the Guarantor with or
merger by the Guarantor into any other corporation or any transaction involving
the transfer of all or substantially all of the Guarantor’s assets to any
corporation or other entity and which as a matter of law or contract results
in
the successor corporation or entity becoming bound by or assuming the
Guarantor’s obligations under this Subordinated Guarantee, such successor
corporation or other entity formed by such amalgamation or consolidation or
into
which the Guarantor is merged or to which such transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Guarantor under this Subordinated Guarantee, with the same effect as if it
had
been named herein as the Guarantor, and thereafter, the predecessor corporation
or entity shall be relieved of all obligations and covenants under this
Subordinated Guarantee.
SECTION
11. Stay
of Time of Payment.
Without limiting any other provision of this Subordinated Guarantee, if the
time
for payment of any amount payable by Sun Life N.Y. from a Guarantee Period
under
a Contract is stayed upon the insolvency, bankruptcy or reorganization of Sun
Life N.Y., all such amounts otherwise subject to payment under the terms of
this
Subordinated Guarantee shall nonetheless be payable by the Guarantor hereunder
forthwith on demand by the Payee.
SECTION
12. Subordination.
The obligations under this Subordinated Guarantee shall be unsecured obligations
of the Guarantor, and shall be subordinated in right of payment in the event
of
bankruptcy, liquidation, dissolution, winding up or reorganization, or upon
the
acceleration of any senior indebtedness of the Guarantor and shall be
subordinate in right of payment to the prior payment in full of all other
obligations of the Guarantor except for other guarantees or obligations of
the
Guarantor which by their terms are designated as ranking equally in right of
payment with or subordinate to this Subordinated Guarantee.
SECTION
13. Governing
Law.
This Subordinated Guarantee shall be governed by, and construed in accordance
with, the laws of the State of New York.
SECTION
14. Submission
to Jurisdiction: Waiver of Immunities.
The Guarantor irrevocably (i) agrees that any legal action or proceeding against
it arising out of or in connection with this Subordinated Guarantee or for
recognition or enforcement of any judgment rendered against it in connection
with this Subordinated Guarantee may be brought in any court in New York City,
New York (a "New York Court"); (ii) agrees that by execution and delivery of
this Subordinated Guarantee, the Guarantor hereby irrevocably accepts and
submits to the non-exclusive jurisdiction of any New York Court in
personam,
generally and unconditionally with respect to any such action or proceeding
for
itself and in respect of its property, assets and revenues; and (iii) waives,
to
the fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of venue of any such action or proceeding brought in any
New
York Court and any claim that any such action or proceeding has been brought
in
an inconvenient forum.
SECTION
15. Severability.
Any provision of this Subordinated 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 jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION
16. Entire
Agreement.
This Subordinated Guarantee embodies the entire undertaking of the Guarantor
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, the Guarantor has caused this Subordinated Guarantee to be
duly
executed and delivered by its officers, thereunto duly authorized as an
instrument under seal, effective as of the date first above
written.
SUN
LIFE ASSURANCE COMPANY OF CANADA (U.S.)
By:
_____________________________
Name:
___________________________
Title:
____________________________
By:
______________________________
Name:
____________________________
Title:
_____________________________
TRA
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