SUBORDINATED OLD GUARANTEE
SUBORDINATED
OLD GUARANTEE
SUBORDINATED
OLD GUARANTEE (the "Subordinated Guarantee"), dated as of September 27, 2007,
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 annuity contracts (together with any riders, endorsements,
modifications or supplements thereto, 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. is the issuer of
Contracts which offer holders thereof the option to earn a guaranteed fixed
return for specified periods, which has resulted in such holders receiving
certain guarantee period interests; and
WHEREAS,
the offer and sale of certain
of such guarantee period interests has been registered under the Securities
Act
of 1933, as amended (the "Securities Act") by Sun Life N.Y., 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 have been
sold pursuant to such a registered offering; and (b) commenced prior to
September 27, 2007; 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, participant, 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:
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(a)
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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
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(b)
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upon
payment of any other amount as a consequence of the death of any
owner,
holder, participant, 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, participant or annuitant
under
a Contract than the terms of the Contract obligate Sun Life N.Y.
to pay
upon such death.
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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:
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(i)
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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;
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(ii)
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any
modification, amendment, supplement, endorsement or rider to the
Contracts;
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(iii)
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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;
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(iv)
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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;
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(v)
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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
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(vi)
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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.
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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 (except any such
authorization that has been duly given, action that has been duly taken or
filing that has been duly made) 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. 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
10. 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
11. 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. This Subordinated Guarantee shall rank
equally in right of payment with the Subordinated New Guarantee issued by the
Guarantor as of the same date as this Subordinated Guarantee.
SECTION
12. Governing Law. This Subordinated Guarantee
shall be governed by, and construed in accordance with, the laws of the State
of
New York.
SECTION
13. 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
14. 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
15. 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.
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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:
/s/ Xxxxxx X.
Xxxxxxxxx
Name:
Xxxxxx X.
Xxxxxxxxx
Title: President
By:
/s/ Xxxxx X.
Xxxxx
Name:
Xxxxx X.
Xxxxx
Title: Senior
Vice President and General
Counsel
