EXHIBIT 4(e)
SUBORDINATED NEW GUARANTEE
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:
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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 p
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